Why do politicians fight to fill judicial openings with their buddies? This question may sound naive—but is it?
They obviously do it so courts put a stamp of approval on their policies. We accept as self-evident that a judge who is a Democrat will decide a case differently than a judge who is a Republican, that a conservative judge will rule differently than a progressive. We are so used to seeing this play out in Supreme Court decisions that we don't even think that something here just isn't right.
I gave no thought to it too—until it happened to me.
I sued in a First/Fifth Amendment case Overview Books v. US to give individuals speech rights of corporations (think Citizens United in reverse)—the Library of Congress denies authors who themselves publish their books the subject-matter keywords which make a new book visible to book trade and libraries; those are given only to third-party middlemen-
As I sued, sensing in this arrangement both crony capitalism and censorship, a fascinating judicial decision-making procedure revealed itself: Instead of weighing plaintiff's argument against that of defendant (or, simply put, my lawyer's argument against the government's), judges relied in their decisions on bogus argument of judges' own concoction. In my case, Charles Lettow decided for government because government argued what it never argued; as did Eric Vitaliano—because my lawyer never argued what was our mainstay argument. Rivaling Orwell, judges take for adjudication parties' argument, but adjudicate judges'.
How does that square with the constitutional guarantee of "due process of the law?" It doesn't. "Due process" demands that judges be impartial; yet they feel free to act as parties to the case, as lawyers to the party they want to win, supplying the argument for it. No one can be impartial to his or her own argument, so impartiality is out. Normally, judges have to recuse themselves when they are parties to the case argued before them, but no recusal took place in my lawsuit, though instead of adjudicating Overview Books v. US, Lettow decided in Overview Books v. US and Lettow, while Vitaliano ruled in Not Overview Books v. US and Vitaliano. Nor is it possible to rebut judges' argument—it appears for the first time right in the decision, and it is too late by then.
So I sued judges for fraud—and they argued that in Pierson v. Ray judges gave themselves the right to act from the bench "maliciously and corruptly;" besides, per Judge Garaufis, replacement of parties' argument by judges is "classical application of the judicial process." This being surreal, I sued to have images of Lady Justice removed from courthouses as deceptive, but judge Shofield dismissed it as "
Why? Journalists refuse to say, but I have a theory. Courts shielded the press from attempts to force it into publishing what it does not want published, no matter how true, in Miami Herald v. Tornillo. The press is also allowed to publish falsehoods—per New York Times v. Sullivan, lie is protected speech. Judges allowed the press to manipulate facts all it wants, either by commission or by omission; and the press likely reciprocated by offering judges its own protection, telling them in a sense "swindle them all you want, we will not say a word." This devils' bargain allows both the press and the judges full freedom to cheat the public. If judges and journalists engage in mutual back scratching, no wonder that courts cheated me out of justice when I tried to fix absence of free speech, and the press ignored me when I tried to fix the courts. The press may even feel as partner in governance, doing its share of controlling us by shaping what the public thinks; if it were up to mainstream media, even the killing of George Floyd would have been hush-hushed—but social media took control, and established press had no choice but to follow.
There are stories that simply cannot be told—unless one is willing to take extreme measures to tell them. Press does go for stories of violence but, as I have no desire to hurt anyone, that option is out. I might go on a hunger strike to force us to face judicial fraud; there is only so much Orwellian doublespeak about "rule of law," "free speech," "representative government"
But first, let's see if less drastic measures can help. Can we get through our heads that the reason real change can only be affected through mass street demonstrations, marches, looting, and toppling of monuments is because courts of law whose very purpose is, ostensibly, to make sure that rights legislated by our lawmakers are indeed implemented, do not fulfill that function, engaging instead in brazen judicial fraud; their real function being to create "appearance of justice" while actually denying us justice, and providing an aura of legality to actions that are patiently illegal? If not for that, any injustice—be it social, or racial, or environmental, or what have you—could be easily fixed through courts, and the reason courts fail that task, is because no "due process of the law" guides judicial decision-making and predetermines the outcome. If, instead of giving the judge a license to "cook the books," judges are told to follow clearly-defined decision-making steps of "due process of the law"—that is, adjudicating parties' argument and not that of the judges, even if the outcome will not suit judge's politics, or be kicked off the bench or worse, then any kind of justice one cares about could be attained by any individual, simply by going to court.
Replacing parties' argument with judges' is what makes arbitrary judging possible; and it is arbitrary judging that results is split decisions of the Supreme Court, and innumerable injustices we suffer in lower courts. Without ordinary, regular justice for which the courts of law are presumably established in the first place being based on "due process of the law," no justice of any kind can exist. To attain justice, we should substitute our instinctive desire to pack courts with judges who share our politics and in its name will disregard "due process of the law;" with a change in rules of decision-making process, denying judges the ability to insert their own argument into the case they hear—a practice that is as common and as illegal as it is wide-spread, dooming any hope for justice.
Current judicial decision-making procedure is, to quote Pierson v. Ray, "corrupt and malicious." To have justice, "due process of the law" must control judicial decision-making process. Nothing else would do.
Lev Tsitrin is founder of Coalition Against Judicial Fraud, cajfr.org