Dispatches from the Creation Wars

A state judge in St. Louis has sparked quite a controversy with a new book called The Tyranny of Tolerance: A Sitting Judge Breaks the Code of Silence to Expose the Liberal Judicial Assault. I haven’t seen the book, nor am I likely to read it; from the excerpts I’ve seen from it, it looks like standard conservative boilerplate rhetoric about liberal judges destroying the world and making it unsafe for moms and kittens and apple pie. But some, it seems, want him removed from the bench because of the book:

The sentiments expressed in that chapter, which frequently uses the term “femifascists” and is titled “The Cloud Cuckooland of Radical Feminism,” have already prompted a complaint with the state body that can reprimand or remove judges.

Other judges and lawyers have said that Dierker may have violated a state rule against a judge using his or her position for personal profit. One judge said it would be surprising if Dierker was not removed, calling the book “professional suicide.”

But this is pretty much nonsense. Judges write books all the time, and often profit from them. Justice Breyer spent most of last summer on a book tour for his new book, which criticizes conservative judicial theories. No one has ever hinted at having him removed from office. Justice Scalia, likewise, has published books in the past where he has expressed firmly held opinions on various subjects. The idea that judges aren’t allowed to publish books, or books that contain strong opinions, is simply false. That hasn’t stopped some from trying:

Lawyers could cite the book as evidence that Dierker is unable to be impartial on issues involving women, or liberals, or the American Civil Liberties Union, for example, forcing his removal from cases…

Dierker could also face an inquiry from Missouri’s Commission on Retirement, Removal and Discipline. Most of what the commission does is informal and secret. But the commission does have the power to recommend anything from a public reprimand to removal of the judge from office.

State Sen. Joan Bray, D-University City, filed a complaint with the commission last month, citing her concerns with the first chapter. Bray said, “I’m still worrying about women in Missouri being treated fairly in the courtroom.” She said she plans a follow-up complaint, based on conversations with lawyers and judges, that would include a complaint that Dierker was violating judicial rules by using his position to promote the book.

Unless the Missouri law is written completely differently from most such laws, they don’t have a good argument to make here. Judges write books all the time and there is nothing wrong with that. And even if they didn’t write books, they don’t come to any case as a blank slate.

Comments

#1 Mustafa Mond, FCD
December 27, 2006

The Tyranny of Tolerance

Wow, what an ironic title. Pure Orwell.
#2 BeyondPopper
December 27, 2006

Karl Popper said that the only thing that could not be tolerated was intolerance.

Thus, there is nothing wrong with the title itself, only with what it actually means, which is that only the forms of intolerance that Dierker disagrees with are wrong.

I agree that there is nothing wrong with writing a book per se. What could make this problematic is the contents of the book; whether it steps outside the line of constitutional jurisprudence and accepts the movement to turn America into a theocracy. There is not enough information in this article for us to make that judgement.
#3 Alan B.
December 27, 2006

See here for an excerpt.
#4 DuWayne
December 27, 2006

BeyondPopper said -
What could make this problematic is the contents of the book; whether it steps outside the line of constitutional jurisprudence and accepts the movement to turn America into a theocracy.

Legaly, that is not a problem. Espousing the belief that America should be a theocracy is a constitutionaly protected right. Writing about his beliefs, no matter how repugnant, is not a crime – nor is it a reason to remove him from the bench. It is a good reason to watch him and not re-elect him (assuming Missouri elects judges). But unless he is making blatantly un-constitutional rulings, there still is no reason to pull him.
#5 Keanus
December 27, 2006

The judge certainly has the right to express his opinions, not matter how ill-founded, outside the courtroom, and doing so should not qualify him from his removal from the bench. But I bet if any cases come before him to which a woman’s role and position (and other positions as well) are factors that the attorneys would be wise to demand recusal.
#6 ZacharySmith
December 27, 2006

Not that I have any sympathy for this guy, but has anyone looked into the history of his opinions to see if his personal views have influenced his rulings.. to see if he’s (gasp!) an activist judge?

Somehow I doubt that’s been done by the people lodging these complaints. The guy may be a crackpot in his personal life but I agree with DuWayne – if there’s no blatant misconduct or incompetence then let him face the voters (assuming of course that he’s elected).

And I really hope we don’t start hearing the “activist judge” crap from the Democrats.
#7 Google
December 27, 2006

Ed:

I think the question here is one of prudence, not of legality.

IMHO, it is imprudent for a judge to express strong ideological opinions, or maybe any ideological opinions at all that might reflect on potential cases he or she may have to rule on.

Whether I personally agree or disagree with those opinions is not the point. And I accept that by their oath of office, judges are bound to rule according to the law, regardless of their ideology. Nevertheless, expressing these kind of opinions may give the appearance of prejudice, which is something that judges are not supposed to engage in.

As you rightly point out, judges have been expressing opinions in public since there were judges, and will continue to do it. But I still think it would probably be better all around if they exercised a little restraint and kept these sorts of opinions to themselves.

However, they’ve got a right to free expression if they so choose, just like I do.

BeyondPopper:

You wrote:

What could make this problematic is the contents of the book; whether it steps outside the line of constitutional jurisprudence and accepts the movement to turn America into a theocracy.

Really? And why would that particular expression of opinion be “problematic” in this context?

Could it be that you don’t mind any or even all books that you agree with, but you want to censor at least some of those that express opinions you disagree with.

Of course, if you are saying that judges should be prudent about what they publicly say or write in general, I would agree with you. But I see no reason to single out this opinion as particularly problematical.
#8 Ed Brayton
December 27, 2006

Google-

The issue here, when it comes to bringing up the judge on charges to have him removed – which was the focus of the post – is legality, not prudence. As far as prudence goes, I would frankly rather have judges be up front about their ideological positions and biases than have them hide it. At least that gives those who argue before them an opportunity to make an argument that might appeal to them. Knowing how Scalia thinks, for instance, undoubtedly helps attorneys prepare an argument that might appeal to him. What this particular judge says in the book is, in all likelihood, a crock of crap, but I’d rather know that he believes those things than have them hidden. That’s especially true in his case, being an elected judge.
#9 MTran
December 27, 2006

Keanus’ point is well taken. The contents of the book certainly would tell me, if I were practicing in that venue, to exercise “watchful waiting,” as they say in the medical field.

On the other hand, the rules of judicial conduct tend to place fairly high standards on a judge’s behavior, both on and off the bench. Especially if the behavior includes commentary about issues likely to come before the court. There are all sorts of rules admonishing judges to not merely “be” impartial but to avoid even the “mere appearance” of partiality. Judges are to not simply avoid conflicts of intereste but to avoid even the “possible appearance” of conflict.

Whether these “high” standards are actually enforced in any coherent manner is another matter, but they do underly most judicial standards.

From what I’ve read of the excerpt that was posted on-line, I think that the judge has overstepped the bounds of prudence and I would not hesitate to demand his recusal on any case I had before him. And I can practically hear his colleagues on the bench shaking their heads and muttering, “What’s wrong with that guy?”

Of course, if his post is elective, he probably lives in a district that loves this kind of crap and he will continue to be voted in. Which would mean, paradoxically, that the only people likely to take steps to have him properly reviewed would be members of the political spectrum that he has reviled so thoroughly

One more thing: I don’t know how far we can analogize from the permissible behavior of federal judges, especially US Supreme Court Justices, to the state trial court judges. I’m not saying Ed’s comparisons to the federal bench are wrong, I’m just posing the question.
#10 Ompus
December 27, 2006

The difference between this book and those written by, for example, Posner, Scalia, Breyer, et al., is that this book appears to attack the integrity of the judiciary.
#11 Ed Brayton
December 27, 2006

Ompus wrote:

The difference between this book and those written by, for example, Posner, Scalia, Breyer, et al., is that this book appears to attack the integrity of the judiciary.

I don’t think that’s true. Scalia has bluntly accused his fellow judges of ignoring the Constitution and substituting their own policy preferences in deciding cases. If that’s not an attack on the integrity of the judiciary, I don’t know what would be. But still, I’m fine with that. I’m all for that kind of give and take, and Breyer can give as good as he gets in that regard. I’m also all for criticizing those books and the views that those justices express, I just don’t think one can plausibly argue that the expression of those opinions renders them unfit for the bench.
#12 Google
December 27, 2006

Ed:

You wrote:

…As far as prudence goes, I would frankly rather have judges be up front about their ideological positions and biases than have them hide it. At least that gives those who argue before them an opportunity to make an argument that might appeal to them. Knowing how Scalia thinks, for instance, undoubtedly helps attorneys prepare an argument that might appeal to him…

Yes, I can see that now that you mention it. It’s a perspective that I hadn’t thought about myself.

That’s how our legal system actually works, as seen from the point of view of an insider like yourself. So I guess we outsiders have to learn to live with it.
#13 Christensen's Clones
December 28, 2006

I don’t know about censorship, and I don’t think it works anyway, but one thing IS clear.

FIVE PEOPLE on the Supreme Court RULE YOU!

THEIR DECISIONS are the only thing that counts as to what is law and what isn’t.

YOU are a slave the the SUPREMOS.

So quit whining.
#14 Ompus
December 28, 2006

Ed:

As with everything in law, or life, I think crticisim by judges of judges their judicial decision making may measured by degrees. As caustic as he may be, Scalia makes specific arguments about specific cases. Here, however, we have suggestions of judicial conspiracy, (evidenced by a “code of silence”), and the contention that liberal judges are mounting what is tantamount to a judicial coup. As Tufnel might put it, I think this book goes to eleven.
#15 Ed Brayton
December 28, 2006

Christensen’s Clones wrote:

don’t know about censorship, and I don’t think it works anyway, but one thing IS clear.

FIVE PEOPLE on the Supreme Court RULE YOU!

THEIR DECISIONS are the only thing that counts as to what is law and what isn’t.

YOU are a slave the the SUPREMOS.

So quit whining.

What a bizarre comment. First of all, who’s whining? We’re simply discussing whether such a book would be problematic for a sitting judge (and I don’t think it is). Second, what is it with people thinking that if they put a bunch of words in capital letters it makes their argument better? The argument is silly. When it comes to constitutional law, of course the Supreme Court has the final say on what it means; that is precisely what the constitution intends to happen and exactly what the founding fathers wanted. The Federalist Papers make that quite clear in explaining that Article III gives the Supreme Court the sole authority to declare all acts “contrary to the manifest tenor of the constitution” to be null and void. And frankly, that’s worked out rather well for us. If you look at American history, it becomes fairly obvious that the courts, while hardly perfect, have been a more consistent protector of our liberties than have the legislative and executive branches. Elected legislatures brought us Jim Crow laws; the courts struck them down. Elected legislatures brought us law after law that tried to abridge our freedom of speech, from sedition laws during wartime that imprisoned critics of the war to laws against flag burning; the courts struck them down. Elected legislatures brought us laws that forced schoolchildren to pray even if the prayer was of a different religion than they were, forced them to recite pledges that were against their religious views, and forbid parents from sending their kids to private schools; the courts struck those acts down. Elected legislatures brought us laws that imprisoned people for marrying someone of a different race; the courts struck them down. The undeniable fact is that the US would be far less free and the constitution far less meaningful today if the courts were not there and functioning exactly as the founding fathers intended them to function. So, uh, quit whining.
#16 slpage
December 28, 2006

A bit off topic, but regards a conservative ‘activist judge’ – Ed might remember this, as it took place in Michigan. Working from memory, so the details might be a bit off. Several (15?) years ago, there was this conservative judge in west Michigan that, literally, gave a man a slap on the wrist as a ‘sentence’ for smacking around his wife after she admitted to having an affair. His ‘rationale’ was that if this were biblical times, she would have been stoned to death. The judge was lauded as a hero by right wingers, made the rounds on the right-wing talk radio circuit (I remember him being on Limbaugh), etc. TV shows did stories on him – showed him reading the bible to his multiple kids… Later, it came oput that he had often taken the opportunity to basically feel-up both female co-workers and women that had appeared before him in court.

I don’t remember whatever happened to that guy. Does this ring a bell with anyone?