Emily Bazelon highlights a disturbing Michael Mukasey judging on a sex discrimination case brought by a female police officer where Mukasey seemed to be doing absolutely everything in his power as a trial judge to make the woman lose. The case was a long time ago, but she notes that Mukasey stuck to his guns 100 percent under questioning from Dianne Feinstein.
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Mukasey and Sex Discrimination
18 Oct 2007 09:50 am
Comments (10)
Mukasey doesn't hate juries. I've been involved in trying a case before him and he was highly solicitous of the jury and said some very complimentary things to them about their performance and the jury system in general at the conclusion of the trial. I would be shocked if he was anything but evenhanded in the conduct of the trial. He is well respected by the fairly liberal NY bar and, in my limited experience working in the courthouse, by his fellow judges in the Southern District. He is, however, a hardass on crime and terrorism and may very well have some nasty beliefs about interrogation methods and executive powers. But he was an excellent trial judge.
Bravo for Senator Feinstein. She's the only one who is standing up to this nomination. All the other senators are jumping for joy over it but she sees through Mukasey.
Mukasey has ducked and dodged her questions. Why has everyone accepted the Mukasey statement that torture is wrong as being a statement against torture. Mukasey, like Bush, does not define torture as it is defined by most people. (He upheld the right of the president to incarcerate an American seized on American soil without charges and trial indefinitely which is a form of torture.) Mukasey's definition of torture is: "whatever we Americans do to others is not torture."
Mukasey doesn't hate juries. I've been involved in trying a case before him and he was highly solicitous of the jury and said some very complimentary things to them about their performance and the jury system in general at the conclusion of the trial.
You'll forgive me, but that really says nothing about how he really feels about juries (and my original comment wasn't directed only, or even specifically, at him, but at the right in general).
I've tried enough jury cases to know that how a judge acts in front of a jury says absolutely nothing about how they actually feel about juries. Being solicitous of a jury is Judging 101.
*insert witty comment here about the relative colors of pots and kettles when used as a metaphor for "judicial activism"*
As a litigator, color me unimpressed with Bazelon's post. First, while I certainly respect the notion of protecting the identity of the accuser in a criminal case involving rape, I'm not sure I get the point of Bazelon's decision to withhold the name, given that there are, apparently, somewhere between two and four published opinions relating to the civil litigation. In this case, it simply prevents those of us who might like to decide for ourselves from finding the opinions without an exhaustive search. This doesn't sound particularly scandalous to me. Good judges and bad judges alike are reversed by appellate courts. And appellate courts make mistakes, too. Bazelon acts as if the Second Circuit is beyond reproach. Frankly, I have more respect for Mukasey for sticking to his guns than if he simply knuckled under and begged for mercy. If Mukasey made a considered decision with a reasonable, good faith belief that it was the legally correct decision, why should he change his mind? Because a higher court disagrees? One can respect a higher court while disagreeing with its rulings. One can respect a litigant while disagreeing with the legal merit of her claims. To be clear, I'm a liberal, and a Democrat, and firmly anti-Bush. I have no opinion on Mukasey. But I absolutely despite this game of "gotcha!" played by both sides when looking at judicial records. A judge can rule against a woman in a sex discrimination case without being a caveman.
If Mukasey made a considered decision with a reasonable, good faith belief that it was the legally correct decision, why should he change his mind? Because a higher court disagrees? One can respect a higher court while disagreeing with its rulings.
Except you are sorta calling into question the very workings of a common law system. The principle of stare decisis *requires* that a lower court judge change his decision (if not his mind) in keeping with a higher court disagreement.
I think the real point of contention is not the original non-suit judgment (although that may give some insight into Mukasey's judgment). But once the higher court set aside that judgment, ruling that there was sufficient evidence to proceed, and it was up to the jury to decide, Mukasey had to respect and obey that judgment - whether he agreed with it or not. In light of the appellate court's first decision, for him to non-suit the case again - this time after the jury's verdict - was outrageous.
Certainly, a trial court judge should follow precedent. If this were an issue of Mukasey refusing to follow the 1983 case as precedent, that would be an issue. One can follow precedent without believing that the precedential cases were decided correctly.
As for setting aside the jury's verdict, I don't understand how, apparently without reading anything more than Emily Bazelon's blog entry, that setting aside the jury's verdict was "outrageous." The procedural mechanism exists, so there must be some circumstances in which it should be used.
No one bats a thousand and I don't think its fair for Bazelon (herself the granddaughter of noted Federal judge David Bazelon) to cherrypick one case perhaps wrongly decided out of thousands, to suggest Mukasey is unqualified. Everyone who knows the man has said he's smart and he's honest.
And frankly, integrity is the most qualification for this post (or any other). Benedict Arnold was a brilliant general but a dishonest man. Or to give another example....
there, using money from organized crime, they began buying land throughout Southern California, tipped to the best deals by Chicago tax attorney David Bazelon, who was serving as director of the Office of Alien Property in the Truman administration. From that office, he oversaw the disbursement of land seized from Japanese Americans sent to internment camps during World War II.
"It was the real 'Chinatown' scenario," Russo says, referring to the 1974 Roman Polanski film that had a similar theme. "This was where the Chicago Outfit's money really went. For years people were asking, where did it go? How did people from Chicago get such instant power (in California)? They owned the land; they got it from the Japanese.
http://nalert.blogspot.com/2006/08/chicago-mobs-mystery-man-sidney.html
Except you are sorta calling into question the very workings of a common law system. The principle of stare decisis *requires* that a lower court judge change his decision (if not his mind) in keeping with a higher court disagreement.
This is true but it ignores the procedural nuances of our particular common law system. I don't know the details of this case, but it would be perfrectly legit for Mukasey to grant summary judgment, have the Circuit reverse based on issues of fact that entitle the plaintiff to an opportunity to present evidence to a jury and then Mukasey making a principled decision that the plaintiff's evidence was legally insufficient to sustain her claim.
Comments closed November 01, 2007.
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Heads in the Sand
It just goes to show you that the right wing, for all their sanctimonious legal theorizing, couched in constitutionalism or "originalism", with their faux deference to juries and the rule of law, at the end of the day - HATE juries.
My point of reference on a non-suit is Canadian, but the test is generally whether the verdict is one that a properly instructed jury could reasonably arrive at on the evidence before it. What a striking condemnation this is of the trial judge - Mukasey - who presided over the trial. You can imagine that given his overreaching efforts to find against this woman what the tenor of the trial was with him presiding (ie. I'd have hated to be plaintiff lawyer), yet the jury still found for the plaintiff.
Posted by McKingford | October 18, 2007 10:41 AM