Paul Cassell Reflects:
The Deseret Morning News has a fascinating profile of Paul Cassell, who recently resigned his district court judgeship to return to academia. Just a taste:
Incidentally, Cassell is one of five federal judges with superlative academic credentials who recently resigned or announced plans to resign either after only a short period of service or when still relatively young. I believe Cassell is now 47, and he resigned in 2007 after 5 and 1/2 years of service. The other four are Mark Filip (41, served for 3 years, now a nominee to become Deputy AG), David Levi (resigned in 2006 at the age of 55 after 17 years on the bench to become Dean of Duke), Michael Luttig (resigned in 2006 at 51 after 15 years on the bench to become GC of Boeing), and Michael Chertoff (resigned in 2005 after 2 years at age 53 to become Secretary of Homeland Security).
Cassell said he found himself questioning some laws at each turn. "I felt like it was proper judicial role to ask questions, even if we weren't necessarily charged with fixing the problem," he said. But he wanted to do more — he wanted to make a change. Being a federal judge, he couldn't do that.Thanks to Doug Berman for the link.
"One of the frustrations about being a trial court judge is that you never set broad principles of law; of course, that's reserved for the appellate courts. ... When I was there for 5 1/2 years, I began to think that maybe I would have more effect in moving the law in a way that I think is desirable by doing appellate litigation."
Incidentally, Cassell is one of five federal judges with superlative academic credentials who recently resigned or announced plans to resign either after only a short period of service or when still relatively young. I believe Cassell is now 47, and he resigned in 2007 after 5 and 1/2 years of service. The other four are Mark Filip (41, served for 3 years, now a nominee to become Deputy AG), David Levi (resigned in 2006 at the age of 55 after 17 years on the bench to become Dean of Duke), Michael Luttig (resigned in 2006 at 51 after 15 years on the bench to become GC of Boeing), and Michael Chertoff (resigned in 2005 after 2 years at age 53 to become Secretary of Homeland Security).
Er, I kinda thought that was reserved for the People acting through the Congress?
As Frank Easterbrook once wrote in an opinion, the first thing an appellate judge reaches for in a case is the back of the brief--where the district court opinion is. Does anyone think that an appellate judge is more likely to be persuaded to adopte broad legal rule X because the lawyer advocated for it in his brief, versus the district judge in his opinion? Of course some district judges feel it is bad form to expressly advocate for particular legal rules in their opinions (i.e. they share Orin's opinion of judicial role), but we already know that Judge Cassell is not one of those judges.
I agree -- that was inappropriate. Unlike Justice Ginsburg, Cassell did at least sharply distinguish the law from his policy views (and notably, he ultimately resigned at least in part due to his refusal to blend them). But I agree that it was inappropriate, and I am pleased that you agree with me on that.
Well, the guys who loaded all those prisoners on trains going to Auschwitz were just doing their jobs, too. Some jobs shouldn't be done.
The War on Drugs combined with mandatory minimums has been catastrophic on so many levels it's hard to know where to start. The judges who enforce it are enforcing donkey-headed stupidity that has visited pain and suffering on more Americans than any other policy in our history that I can think of. And the judges who do this job aren't even allowed to publicly say that it's stupid? Sorry, ain't buying it.
Godwin's Law strikes early!
Please refrain from making such ridiculous arguments for crying out loud... they just sound pathetic and ignorant. I mean, how am I going to get back the 4 seconds I wasted reading your comment?
The unspoken premise in Orin's and GV's argument is that the fact that a judge is "just doing his job" somehow allows him to escape culpability for doing a job that shouldn't be done -- in this case, send a 24 year old kid to prison for life for a first-time drug offense. So, let us test that premise by applying it across the board. Is EVERYONE excused from moral culpability because they were doing their job, or just government employees (including judges)? I used Nazi prison guards as my example; I could equally as well have used Mafia hit men or Taliban morality police who, I hope we would all agree, are also doing jobs that shouldn't be done.
Sending a 24 year old kid to prison for life for a first offense drug deal is also a job that shouldn't be done, for the reasons the judge gave in his opinion. He doesn't escape moral culpability just because the government pays him $150,000 a year (or whatever judges make these days) to do it.
Can you elaborate on your view of a judge's proper role? What is your test for determining what jobs "should be done" and which ones "shouldn't be done"?
Are you using the testimony as an additional fact to show the judge has a clear bias that might cloud his legal judgment in a case, or do you have a problem with testifying before Congress in general?
If the latter, what is the problem?
I agree that an opinion is not the proper forum for a district judge to push for changes in the law, but I don't have a problem with a judge testifying to Congress on a policy matter. It is another piece of information for Congress to consider in making decisions, especially because a judge is the person who sees the results of Congress' decision on a daily basis.
Judges, like everyone else, have a moral duty to not do that which is deeply and fundamentally immoral. A lynching is a lynching whether done by a mob or done by the U.S. marshalls on the order of a federal judge. If Congress in a moment of collective insanity actually passed a law empowering (or worse, requiring) federal judges to lynch Blacks without trial, any judge who actually did would be just as morally culpable as a hooded Klansman who did the same thing. So the question isn't so much what is a judge's role as what is a decent human being's role. Decent human beings don't do immoral things even if their bosses want them to. It's the same theory under which Abraham Lincoln ignored habeas corpus and arrested the entire Maryland legislature to prevent secession.
A judge in that position is in the same position as any other employee whose boss wants him to do something immoral. He can resign or he can resist. But immoral acts -- and this is my single most important point -- only happen when men can be found who are willing to do them.
I realize that not everybody here agrees with me that the war on drugs is immoral but for sake of argument assume I'm right. What do you suppose would happen if the entire federal judiciary said, We are no longer going to do this. We're on strike. We won't schedule drug trials -- we do still have control over our own calendars -- and we will grant low bail to drug defendants while we aren't scheduling their trials. We can't stop Congress from passing this evil lunacy, but neither will we help. And if we all get impeached, well, private practice is more lucrative anyway.
Did I answer your question?
Okay, I'll respond substantively, but please refrain from making Nazi comparisons unless they're truly called for.
In our system of law, judges are supposed to apply the law impartially, even in cases where it strikes them personally as grossly unfair. The jury, not the judge, has the right to acquit a defendent when the law, as applied, is manifestly unfair; but for better or worse, jury nullification is quite unpopular nowadays.
I quite agree the the punishment in this case is outrageously disproportionate to the 'crime'. Unless the defendent was dealing drugs across state lines, the federal gov't must pervert the Commerce Clause to argue that they even have any jurisdiction. And then to top it off, they want to add 55 years because he exercised his right to bear arms?! While I agree with Prof. Kerr that a judicial Opinion is generally not the proper place for policy discussions, I think the gross unfairness of the law, as applied, excuses Judge Cassell in this instance.
Thanks for your response. I think you may find this student note worth reading if you haven't read it already. We discussed the note here.
Orin
Does anyone want to defend those judges? "Well, they were just following the law." Judicial service is voluntary. Any judge could have resigned rather than enforce that unjust law. (I would hope we could all agree that the FSA was an unjust law under an jurisprudential definition.)
If anything, I have less sympathy for those judges than the people who wouldn't disobey official orders from Nazi leaders: Those men would have been sent to prison and perhaps executed. No judge who enforced the Fugitive Slave Act had to face such a choice. "Give up your power" is quite a different task than "Give up your freedom or life."
Yet judges who "just follow the law" and thereby cause grave injustices should just get a pass? This has never made sense to me.
Whether The War on Drugs is analogous to the Fugitive Slave Act is a totally different issue. I don't think it is, even though the War on Drugs is outrage, and even though whites and blacks are treated disparately vis-a-vis the crack-powder disparity. But to the extent that judges shouldn't just be able to say, "Well, heck, I was just following the law," NI's points are legit.
Nope. They can resign. Judge John S. Martin Jr. did this in light of the Feeney Amendment and other problems he perceived to exist with the Sentencing Guidelines.
All NI is saying is that a judge shouldn't be able to hide behind the law. There is no, "I was just following orders" defense when judicial service is voluntary. Rather than enforce an unjust law, an upright man or woman should resign. (Incidentally, Justice Scalia made similar remarks in a Pew Forum on the Death Penalty held at the U. of C.)
I thought Cassell gave it up because of the slave wages they give judges. All high minded now, isn't he?
It helps to distinguish (a) what Cassell actually said from (b) how bloggers chose to represent what Cassell said. His resignation letter does mention salaries, but only near the end; it seemed pretty clear to me that his real interest was elsewhere.
I think any attempted analogy to the FSA necessarily fails.
Haven't courts uniformly rejected Blakely-style attacks on the 100:1 ratio? I don't know the particulars of how much racial disparity there really is, but my understanding is that no court has found it to be so great it must be because of racial animus.
If so, I would think that most agree upholding slavery is far, far from harsh sentencing guidelines in that the former is by necessity based purely on racism. To the extent NI relies on analogs like slavery, the argument starts to crumble.
First, let's take the argument that's partially self-serving but not entirely wrong: if every judge who dislikes the FSA resigns, what's left is a judiciary filled with judges who do like the FSA. Moreover, there may be other issues of justice in which judges have more discretion; by resigning, the anti-FSA judges forfeit the ability to do something positive about those situations. So resigning can backfire.
Second, what would have actually happened, historically, if all federal judges -- whether they resigned or not -- had refused to enforce the FSA? Civil war. (Of course, we got that anyway, but they didn't know that.)
Orin’s point that the judiciary is somehow violating the separations of power when it makes legislative recommendations to Congress in a court opinion is equivalent to saying that Congress violates the separation of powers when it files an amicus brief. I don't see the problem with the branches of Government communicating to each other on issues where one branch might have special insight. As long as the advice doesn't come as a veiled threat, I don't see any credible argument that there is a separation of powers issue.
In any event, sorry I missed your sarcasm.
Professor Kerr, is your point that being a federal district court judge is such a great gig that almost no one leaves the job?
But why is it inappropriate? A trial judge sees how the law functions at ground level. It seems to me wholly appropriate for him to comment on how things actually work, rather than how they work in the fantasylands of political rhetoric.
Honestly, I think the adjective to describe an opinion that includes a section amounting to "This is what an impartial application of statute and precedent requires as an outcome, though it is defensible neither as sensible nor as fair &just," isn't 'inappropriate', it's 'laudable'.
NI is right, our drug laws are evil. If I am ever on a jury I will simply refuse to convict on drug charges. And in voir dire, if the law talking fellow asks about jury nullification, I'll say, "Jury what? Never heard of it." That's my lay-citizen's accommodation to the evil drug law problem.
I'm interested in you attorneys' insight about how it actually works. It seems to naïve-me that judges have a practical fix to NI's problem – let the people on the jury decide. Let the jury know a conviction will result in a mandatory term of x-zillion-years, and let them know no one can compel them to convict. If the judge's belief that the law is immoral is correct, juries will agree and some will refuse to convict. If they convict anyway, the judge has at least given his opinion about the law's morality the test of whether other people agree.
Now, I understand that it's against the rules to tell juries about sentences beforehand, but because this let-the-jury-judge-the-justice-of-the-law is an attractive and practical solution to the evil law problem, I'd like to know why judges do not actually do it.
Or, more to the point, why no judge anywhere ever does it.
And what would happen if judges did?
The first part's fine. The second part's cowardly. As some other commenters suggested, judges who don't like the drug laws should resign rather than enforce them. Same goes for jurors, I think. If you're going to take a moral stand, take an actual stand, don't try to sneak it by everyeone.
Look at it another way: What percentage of Bush 41 or Bush 43 appointed lower court judges who are former Supreme Court clerks decided to leave the bench early in the last two years to do other stuff? The post above lists five. Thats about 30% of the total group resignining within only two years, right? Given that the resignation rates of federal judges are incredibly low as a whole, that number strikes me as worth mentioning.
He mentioned three things in the resignation letter. 1. he got a great job offer 2. he got a second great part time job offer 3. he can't afford to send his kids to college on 150K per year.
First two are jobs, jobs mean money. Third is money solely.
Nothing about mandatory minimums or illegal immigrants in the letter.
That strikes me as a remarkably uncharitable reading of the letter. In the interests of full disclosure, though, I should admit that I make about $1.50 an hour blogging. So perhaps I'm all about the money, too.
I think this would have been more complex. Who knows what a massive judicial exodus would have caused.
Second, what would have actually happened, historically, if all federal judges -- whether they resigned or not -- had refused to enforce the FSA? Civil war.
Maybe the Civil War would have come early. To the extent the North would have been logistically unable to defeat the South, that would have been a bad thing. But not all wars are bad, and while many of us might have good-faith disagreements over whether a give war is just, I don't think anyone (other than a legitimate pacifist) would argue that the Civil War was unjust. So, "Bring in on."
To the extent your point is that we (as citizens) are better off having good men and women enforce bad laws, rather than having bad men and women enforcing those same bad laws, that's an excellent point. It's hard to say whether we'd end up with a bench full of bad judges if all the good ones left. Perhaps the law would change for the better. Fifty judges resigning would seemingly do far more than a butterfly flapping its wings.
Not exactly "cowardly," as Colorado's Kriho case proves. Juror Krihno "took her moral stand" expressly, failed to vote to convict, and was charged with contempt. The charge of course was for surrounding circumstances, not expressly for voting the wrong way. But the facts are convincing, juror Kriho would never have been charged with anything but for her refusal to convict.
I know what people say, I don't see why anyone imagines what they say is persuasive. Your way the kid goes to prison. My way he doesn't.
Why, according to your theory, is it better to follow the rules of an evil system, with the evil result of a ruined life, why is that better than breaking the rules and stopping the evil?
$1.50 an hour PLUS all the beers readers may or may not owe you.
Would you also lie/commit perjury when they ask you to take an oath to apply the law in order to get on the jury in the first place?
By the way, it's not limited to judges. Remember how desperate Bill Weld was to get out of finishing his second term as governor of Massachusetts? Equally brilliant, equally bored.
Of course. And so must you. It is our sacred duty to oppose evil. Our drug laws are evil. Not theoretically or abstractly evil; actually and concretely and immediately evil. Right here, right now, today, they squander lives.
The meaningful question is, would I lie/perjure if I knew I would get caught and judicially slapped around. No, I wouldn't. That is my cowardice. I've got a family to feed and kids to put through school, and I'm not going to trade those for heroic gestures.
I will, however, look in the eye of a man about to send some kid to jail for life, on a chickenshit drug charge, and lie. That is our moral duty.
Except, perhaps, for someone who thinks that the US is too large to be governed effectively and fairly, that two smaller countries would do a better job protecting the rights and (fairly dissimilar) interests of their citizens, and that the War that kept the states together is the one that killed true federalism, warts and all.
But accurate.
People who make 150K a year and whine about sending their kids to college when 90% of American families make less and still manage does make me uncharitable.
Considering that we have a tradition in this country of federal judges doing just that (Clinton prominently appointed Abner Mikva and Louis Freeh to administration positions), this doesn't say much about the prestige of the judiciary. So now we have three more: two veteran judges, one district court judge who took a highly prestigious academic position (and his father was a law school dean before him) and one appellate court judge who took one of the most powerful general counsel positions in the country, and one new district court judge who was dissatisfied in his job.
I think it's a stretch to regard it as more than a coincidence that they were all Supreme Court clerks.
Nick
I think we'll have to agree to disagree: I see this quite differently from how you see it, and I have a feeling we're not going to reach agreement on this one.
"Strikes me as worth mentioning"--I'll buy that. But that's not a very high bar. Plus, the number of judges leaving is so tiny that we can really only look at individual quirks rather than any significant trends.
Luttig valued money over public service (even though his public service job included a handsome salary and lifetime tenure). Cassell discovered that being a trial court judge is not primarily an intellectual job (and he also whined about his handsome salary, but not as much as Luttig or Chief Justice Roberts). The President asked Chertoff to head a cabinet department. The President asked Filip to take a top DOJ job.
These are are very personal decisions, not some trend. If there is any general trend, it's that very few federal judges quit for any reason other than old age.
Or you can take the Natural Law approach, according to which unjust 'laws' are not truly laws at all (in the same sense that an unconstitutional federal 'law' is not really a law at all). This, by the way, is how Martin Luther King Jr. justified disobedience of racist segregation laws.
It is odd that some people just kind of pretend that our legal system is based on common law (and that Congress expressly has recognized this on several occasions, eg FRE 501 which is the first thing that came to my mind). More odd are those that pretend that you can just apply the law to the facts without having to think at all or create some "rules" in addition to those created by the legislature and also to fill the gaps in the judiciary. Also odd is the denial that Article III courts have these things called inherent powers where they need to and must create rules for the administration of the Courts.
Rethink that: for 25 years after law school, he spent a grand total of 4 years in private practice; the rest was government work, from law clerk to DOJ to judge. Wouldn't he have gone for the money long before his 50s?
I've never met the man and won't try to read his mind but it was obvious that he wanted to be on the supreme court, he competed ferociously for the honor despite its pay rate, and his resignation occurred after W. passed him over. Read what you will into the timing.
Its our "sacred duty" to oppose evil, but the revolution will have to wait. I have kids in school.
remarkable comments on this thread. Just remarkable.
Er, and all these things involve "set[ting] broad principles of law," how?
MLK was open about it. The MLK analogy to lying during voir dire and then refusing to convict is if, instead of organizing sit-ins, he'd disguised himself as a white person.
People who make 150K a year and whine about sending their kids to college when 90% of American families make less and still manage does make me uncharitable."
No Bob, it's not accurate. If Judge Cassell wanted to make big bucks, he would've become a partner at a major law firm, not gone back to academia at a public law school in Utah. Your predictable, canned cynicism and obsession with money are no doubt reflections of your own personality, but that doesn't mean everyone else is as shallow.
No Bob, it's not accurate. If Judge Cassell wanted to make big bucks, he would've become a partner at a major law firm, not gone back to academia at a public law school in Utah. Your predictable, canned cynicism and obsession with money are no doubt reflections of your own personality, but that doesn't mean everyone else is as shallow.
Sounds like he couldn't hack the job and found easier pickings in academia, and others at places like Homeland Security.
We should cry at loosing short-timers whose hearts aren't in their work, and who are off looking for better opportunities and bigger fatter paychecks for their growing families? No thanks. I'll save my tears and think a quick, "good riddance".
Yes, that didn't stop him from getting a job with the Reagan administration and clerkships with Judge Scalia and Berger, but nobody is doubting his connections (when Rehquist spoke at UVa, he stayed with then-student Luttig).
I'm not saying he's an idiot. At the end of the day, Luttig seemed to be a very sharp jurist, a feeder judge, and has an impressive resume, but I don't think it is the academic part that impresses.
My cynicism is neither predictable nor canned. It is fresh
cynicismrealism.I don't think Cassell is only about money. He wants money coupled with high status. Fine, this is a country of great opportunity. Cassell, a very bright guy, can do whatever he likes. Just don't expect me to gush over him.
And, Jay, what does your use of insults say about your personality?
Prof. Kerr: Would you mind elaborating on this? I'm having difficulty understanding why Cassell's opinion offended your sense of propriety. Personally, I prefer the judiciary to be above-board with its policy prescriptions, rather than underhandedly enacting them while pretending to be merely "interpreting" the law.
I don't question his motives. I don't like the whining about salary (after all, is $150,000 just not enough to live comfortably in Salt Lake City? If so, then why should anyone think that federal judges should have a valid claim to more?).
I do wonder, however, about the selection process. It seems that Cassell is saying that his heart wasn't really in it; that he took the lifetime appointment, and then tried his damndest to turn the job into the kind of bully pulpit he desired. When he found out that being a trial court judge isn't really compatible with those ambitions, he moved on to something that is.
Shouldn't he have seen this in himself from the get-go and turned down the nomination? I think so. Will it become a problem if a significant percentage of federal judges begin to view the job as a stepping stone to something else? Definitely so.
We're not at that point yet, so I'm not worried. But I do think we need to pay attention to these factors in the appointment process. A young, talented, highly opinionated person who thrives in the public policy arena (Cassell) just might not view a lifetime appointment as a lifetime commitment. His retreat into academia and advocacy doesn't bother me, but how long before a guy like Cassell steps down from the bench to run for the Senate? That would strike me as a problem, since it would call into question the relationship between his political ambitions and his judicial decisions (or, in Cassell's case, his dicta-torial pronouncements on public policy).