17 November 2017

Blame the Lawyers

This time, I mean it. And I mean one specific subset of lawyers in particular: The Alabama State Bar Disciplinary Commission and those subject to its so-called "regulation."

When "That Judge" archly justified his violation of federal court orders regarding litigated subjects as a sitting judge subject to the Supremacy Clause, Article VI cl. 2 (which he had specifically sworn to uphold), he should have been subject to public discipline, and probably disbarment. Not just the first time, but the second time, too. This is not because he held a particular set of beliefs, or continued to advocate for a change in law; a vicious and even incivil dissenting opinion would have been in-bounds, however unjustified on the merits. It is because he demonstrated unfitness to practice law by explicitly rejecting valid and binding court orders concerning particular conduct not just of matters he was adjudicating, but of himself, in a way that so thoroughly undermines the rule of law that it simply cannot be tolerated from any officer of the court — let alone a judge.

It is uncertain whether the people of Alabama would have paid any attention at all. After all, this is a state in which I was accused over the phone of being a "[expletive deleted] christkiller" for having the temerity to ask the local Chamber of bloody Commerce for contact information for a local synagogue/temple on behalf of several fellow officers who wanted to attend Passover services... which explains full well why there was no entry in the local phone book (this was the late 1980s). But the Bar has to have higher standards than that. Not just higher bar-exam test results, because the bar exam does not and cannot test whether a prospective officer of the court is actually committed to the rule of law. A public record of bar discipline might have given at least some voters pause at primary time, and is a critical element of electoral information today.

And discipline imposed this century wouldn't have helped any woman being subjected to what they have credibly described as — to put it as mildly as possible, because after all I haven't reviewed evidence, only public statements — creepy stalking and sexual harassment years ago by an apparent predator overimpressed with his political power, even more than was Boss Hogg (and on all evidence, not much if any brighter).

As some modest compensation, members of the Alabama State Bar Disciplinary Commission, you've got company in a lot of other states. No discipline was imposed on Rod Blagojevich after his removal from office by the Illinois Senate following a full impeachment trial finding him guilty of outright corruption; no, there wasn't even a formal inquiry until years later, after a federal trial and appeal on broader charges. Discipline of various Watergate conspirators was largely minimal. (And meanwhile, solo and small-firm practitioners continue to bear the brunt of discipline for conduct laughed off in large firms, in-house counsel, procecutors' offices, and most other government roles not involving criminal defense and/or child welfare.) So this isn't unique to Alabama: It's a problem with the entire profession.

As a military officer, I was ashamed of the respect offered to William Calley and Ernest Medina among a certain cohort of my fellow officers (despite my conclusion based on review of documents that they had more probably than not been ordered to engage in at least some of those activities, they still had an obligation to disobey clearly unlawful orders). Unfortunately, that cohort was in midlevel and even senior leadership positions during the Reagan Administration, including "luminaries" like the Iran-Contra miscreants (who shall not be named here). Had there been a significant conflict at the time, I think things would have, umm, devolved discreditably under their "leadership." Fortunately, by the time the first Iraq-related conflict in the Arabian Gulf rolled around, their influence had been diminished by retirements, disgust at Iran-Contra itself, and a better class of officers resulting from higher standards imposed during the Ford and Carter years, who had attained enough seniority to credibly say "No, sir, I cannot follow that unlawful order" with at least some expectation of vindication. (Of course, that's what "That Judge" will claim he was doing… but the order in question did not require him to do something unlawful, it rejected his position that what he was doing was lawful, and that distinction really does make all the difference.) The public deserves better than this. I deserve better than this. I'm pissed off that I have to be ashamed at another profession that proclaims that it can only be self-regulating, and nonetheless refusing to do so to the detriment of the public… but not the political ambitions of its members, never that.