One nation under God

The Pledge ... Blogging judges ... Three strikes ... And other lunacies of the US justice system ... Pillsbury Flom reports 

As a fledgling lawyer in Australia I would look at the American legal system as some sort of mutant octopus, reaching its tentacles into the nastiest crevices of life, and wrapping them around some of the weirdest creatures to emerge out of any system of law. 

Take elected judges. Are you serious? So some attorney, who fancies himself as a judge, throws his hat into the ballot, and ends up sitting in the equivalent of an Australian state supreme court adjudicating over murders or nationwide class actions.  And all after campaigning for an end to "judicial activism". 

Just picture Dyson Heydon delicately sipping his amontillado sherry with these brethren at some international judicial junket in Hawaii, as Judge Chushcoff regales him with the contents of his Candidate Statement for the pending elections for the Washington State Supreme Court this November 2.

"And Heydon, I gather you're a conservative too. Nice to talk to you, buddy."

Or three strikes and you're out. Hey what? You mean if a defendant shoplifts some golf-clubs and has two prior felony convictions, he gets life imprisonment? Yessirree. 

Or the kinky tradition of the perp walk where white-collar accused, or celebrity Australian telephone-throwers are handcuffed and marched to court in a stage-managed event for the media. Meanwhile, the cops have distributed the celebrity's mug shot faster than a Polaroid, all the while operating under the absurd mantra of a criminal justice system that presumes innocence.

Then there is the bizarre court room procedures where counsel wanders off from the bar table, and saunters around the room examining witnesses or approaching the bench for a side-bar to whisper sweet nothings in the ear of the judge while his opponent objects and the bemused jury looks on having been excluded from the mean-girl clique.

Now just past the fledgling stage, it still came as a surprise to me when this month, in Tupelo, Mississippi, Lee Chancery County Court Judge Chancellor Talmadge Littlejohn jailed lawyer Danny Lampley for refusing to join in saying the Pledge of Allegiance.

The patriotic jurist sits in Elvis Presley's birthplace, and took just a moment to summarily commit Mr Lampley for contempt and jail him for five hours (which was at least long enough to enable the mandatory mug-shot to be taken and distributed to the media).

His Honor released the contemnor to enable him to appear in another case set for hearing before the same court.

Were it not for that happenstance, it appears Lampley would have been left lonesome that night.

None of the US media thought it remotely odd that the judge presided over the daily recitation of the pledge in his court.  Lampley's only reported response was, "I don't have to say it because I'm an American." 

All rightee, then.

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Posner: blogging judgeThen there are judges with blogs. One of the best known is Judge Richard Posner of the 7th Circuit Court of Appeals.

Dick is an appointed jurist (President Reagan), and a darling of the conservatives, although his idiosyncrasies ruffle feathers from time to time.

In any event, Dick thought nothing of blogging a free ranging discussion a few days ago on whether the hitherto constitutionally embedded American birthright of citizenship should be amended, or whether the right is constitutionally mandated at all. 

This is in the midst of the current obsession of the political right with illegal immigration (read "the Hispanic hordes") solely for the purpose of giving birth on American soil to guarantee the baby's US citizenship.

One can imagine all sorts of ways such an issue could give rise to a justiciable controversy before a federal appeals court such as Dick's.

US courts of appeal are overwhelmed by immigration appeals, but Dick still blogs away.

His libertarian views have given rise to calls for him to run for President, and his quotes have been collected in a recently published book.

They include, rather disappointingly, "Litigation is not ping-pong".

The book's author, Robert Blomquist, noted:

"The bottom line here is that Judge Posner is one of the few appellate judges that writes his own opinions. Otherwise it would be like getting quotations from law clerks." 

The law clerk opinion is not entirely confined to American soil. At last there is antipodean connection. There is many an associate to certain Australian judges who may have resort to the law reports to consult their own handiwork, although the practice be dare not spoken.