Is it Really Inappropriate for Judicial Candidates to Discuss Issues?

While on the campaign trail for my candidacy against Judge James Cox, I keep hearing judges claim to inquiring audiences that they cannot discuss any legal issues. Garbage! I don't know if they are saying that because they do not want to reveal to the voters how they feel about their service, or intended service, to the Republic, where the people are sovereign, or if they do not have the facility to comprehend their role and to coherently express it. Let's discuss the law of the matter, since that is what one would hope judges deal with!

First off, you all will recall the noisy, opinion and facts driven discussions in the senatorial grillings of U.S. Supreme Court nominees, which are televised, and written about, and reported widely. Those nominees discuss everything about their views of the Republic and of the law; they just do not discuss things currently or likely to come before the High Court. But you have little question about their views of the system and of legal issues when it is all over. And that applies to candidates for judicial election in this state: the same canons apply.

Everyone running for election for a judgeship are governed by the same canons, whether they be sitting judges or attorneys seeking the public's support to become a sitting judge.
So, the rules: "A candidate...shall not (1) make statements...that commit the candidate with respect to cases, controversies, or issues that could come before the courts, or (2) knowingly, or with reckless disregard for the truth, misrepresent the identity, qualifications, present position, or any other fact concerning the candidate or his or her opponent."

"Commitments" cannot be made; that is a far cry from the frequent claim that one cannot discuss, generally, legal or constitutional issues.

The problem with all of this is that there is a growing elitism among those on the bench and among some of those seeking positions on the bench, in a Republic from which governmental elitism was evicted in 1776. Those in government [and the judiciary is government!], while mouthing constitutional and founding pieties, sometimes with misty eyes, really have no interest in truly embracing popular sovereignty nor in recognizing the founding proposition that power resides in the people, and they despise the truism that those chosen to exercise the public's power are servants, not masters. That being the case, too many of them, especially judicial candidates, do not want to reveal to the voters the extent to which they are [or are NOT!] committed to the notion of popular sovereignty.

So, when an inquiring voter asks what a judge or candidate thinks, philosophically, about, say, jury nullification, or reasonable bail, or gun rights, etc., the candidate is fully entitled to answer in generalities that reveal how he or she view the Constitution; "commitments" cannot be made, but wide-ranging comments are proper and should be demanded by the voters. That is because another portion of the rules provides that "Judges are entitled to entertain their personal views on political questions. They are not required to surrender their rights or opinions as citizens."

Commitments, and association with obviously inappropriate political-viewpoint organizations [don't attend a KKK, or communist "overthrow the government," rally, for instance, even if not speaking!], are what is prohibited; temperately informing those whom you are asking to give you their power is not!

So, if you are faced with statements by one of the groups of judges running around the county to protect their chums from being voted out of office [and implicitly to protect themselves from future electoral attacks], or by a candidate or sitting judge, that they are prohibited from commenting on constitutional issues in general terms, you should recoil from their elitist claims and you should use that "I can't tell you what I think" as a confession that they do not deserve your support and vote.

Because of that contra-constitutional judicial elitism, among so many other things, I am runningfor Seat Number 2, against Judge James Cox, and I need your support. And I am neither too cowardly nor too fog-brained to inform you exactly who and what I am. We get the government that the voters give us, and our judiciary has fallen from being among the best in the country to becoming one of the worst due to unwise electoral and gubernatorial choices over the past 30 years. Let us reverse that degenerating trend; support me and you will see the difference. www.kennedyforjudge.com

Police Should Support Me Too

Although it is generally understood that anyone who thinks about the matter with any depth at all would support me in my election against Judge James Cox [especially given that Cox's confederates are trying to con the electorate into forfeiting their vital franchise by suggesting, in an exercise of arrogant elitism, that voters should not vote against incumbents!], a question occasionally arises why, even though lovers of the Constitution obviously support me, would police support me?  Oh, that is clear.

Most police officers are lovers of the Constitution too.  They are sworn to uphold it as aggressively and sincerely as I am, and their friends and families have the same interest as anyone else in a neutral, unbiased, competent, courageous judiciary. To be sure, part of my professional function in the courts has been to counter the efforts of police when their conduct violates people's liberties. That was also part of the professional function of fellow constitutional defense attorney John Adams, the founder of the American conservative movement. That does not translate to a hostility between the properly functioning constitutional defense attorney and the police. Their job is to move fast and apprehend wrongdoers and to interdict wrongdoing; the role of the defense attorney is to make certain the fast movement comports with constitutional norms and is supported by sufficient proofs properly collected; and the role of the judge is to listen to the defense attorney's presentation about the lawfulness and sufficiency of that fast movement and to apply the law with neutrality, propriety, insight, scholarship, and courage.

That is, in a simplistic model for discussion purposes, the police enforces the statutory law; the defense attorney invokes constitutional law; the judge applies it all to serve the overarching meaning and substance of a rule of law.  Police know that without being slowed by the counterpoise of the defense attorney, we would have tyranny; the defense attorney knows that without the appropriate movement of the police in the community, we would have anarchy; and the judge knows that without properly regulating both ends of that dynamic, we would not have a rule of law but would instead have governmental lawlessness.  And no one is to be benefited by the latter, because the marvelous experiment in Philadelphia in 1787 could come loose at the seams if there were not the proper accommodation between power and license decreed by the Framers.

Police in many areas of my career have come to me for quiet, and sometimes less than quiet, assistance, because they know the risks to themselves and to their loved ones when the law that is intended to be enforced in their favor is not.  And they know that I will courageously and knowledgeably and discretely do so, and I have.

In one community, where I had developed certain, and unsurpassed, notoriety for my ability to enlist the assistance of the Constitution to benefit clients against overweening government, the issues of what we are all about came into stark relief.  Two police agencies were having spoiled brat feuds against each other.

The police of one arrested a member of the other for DUI.  Then the police of the other arrested a member of the first for DUI.  The officers victimized in both agencies by both agencies hired me.  I did my magic for both, employing my constitutional gifts to assist both, and I got both cases dismissed, and then I sat them both down and inquired if they now understood why I do what I do and what it is all about.

They did.

Until people get victimized by overbearing government, they cannot understand that (a) government can be childishly overbearing with non-Justice agendas, and (b) we need people with the guts and knowledge to right such wrongs.

That is what I am about as a constitutional defense attorney, and that is what I would be about as a judge.

So, the community can fall for the constitutionally obscene position taken by Judge Cox's self-serving confederates that whoever exercises the community's judicial power [and the power does belong to the community, not to elitist judges!] is none of the electorate's business.  Or the community can realize and embrace the notion of popular sovereignty, and its periodic direct exercise called "election," and take the measure of the man or woman asking for the opportunity to serve the public's interests, and then choose to award that service, temporarily, to the person they desire. We fought a Revolution partly to make sure we could select our leaders at the ballot box, rather than being stuck with leaders who occupy their positions merely because..., well, they, and their families always have.

Properly functioning police would support me just as surely as would anyone else who believes in a rule of law and in the Constitution.

Don't forget to vote on June 5, and vote for Kennedy for Riverside County Superior Court Judge, Seat No. 2.  And I need your help, so please get involved.  www.kennedyforjudge.com

Ask the Chief Justice.... [The Desert Sun would not publish; will they ask?]]

[The following is a blog entry that I have tried to post 6 times over several days in the Desert Sun.  Curiously, it will not post.  I know the Sun has allowed itself to be used by certain judges to suggest to unknowing audiences that there is something "different" about judicial elections from other political positions and it has allowed those judges to advance the political heresy that sitting judges should not be ousted by the electorate absent overwhelming misconduct being demonstrated. Of course, the state Constitution makes trial judge positions subject to contested elections every 6 years, so any suggestion otherwise is constitutional misconduct, if uttered by sitting judges. I regret that the Sun is allowing itself to be misused for others' political agenda.  However, if the Sun is truly interested in understanding the Constitution and what this Republic is all about, it will consult me: none other, regardless of station, is a better or more knowledgeable authority. But they really do not care.]

The Chief Justice of California, Hon. Tani Cantil-Sakauye, will be in our area April 19, to address the Desert Bar Association, and it would be a great service to the community if the Desert Sun covered the significant event and posed certain questions.

The chief justice wears many hats in this state, one of which is serving as the titular head of the entire judiciary [which itself has ultimate authority over those practicing law in this state], and another one being as the chair person of the Judicial Council, which establishes rules governing judges. She also has the unlimited power to assign retired judges to any court in the state, and they are beholden only to the chief justice.

The press should pose questions to the chief justice about matters involving the judiciary, especially since she has decried the quality of judges, and has decried the low esteem in which the public holds the judiciary, and she has charged the attorneys of the state with a duty to help improve the quality of the judiciary and to educate the public about it. Of course, the public cannot be inspired to respect the judiciary until the judiciary deserves it. Commanding one to address a person as “Your Honor” does not translate to a substantive reality that he or she conducts himself/herself with honor.

So, to help inform the debate, the following are among many questions the press should pose to the chief justice, and on which they should press her for an answer. These are not theoretical matters; they have all happened, or are in the process of happening, or are current realities.

Madam Chief Justice:

1. Given that the state Constitution expressly provides for contested elections of trial court judges, do you think sitting judges should try to convince the electorate that they should not vote for other than an incumbent? That is, should judicial elections really not be contested, notwithstanding the Constitution, and should the voters automatically re-elect sitting judges unless the judge has been in trouble with the regulatory system or the appellate system?

2. Do you have a personal view about whether trial court judges should be subjected to contested elections? Do you think sitting judges should impose their personal view of that constitutional question onto voters, who really do not have an understanding of the real politics behind judicial selection and service?

3. Do you think it proper for sitting judges to ban together with a local attorney and strong arm private organizations into not letting candidates against incumbent judges speak at their events? Do you think it proper for sitting judges and a local attorney to form a political cabal to strong arm social and political groups into revoking already-issued invitations to candidates to express their otherwise free speech views, if those candidates are running against incumbent judges? [If you think that does not happen, and right around here, think again! Your faith in the judiciary exceeds its substance.]

4. Do you think it proper for traffic court judges to demand that those who plead not guilty on traffic infraction accusations pay a “bail” before the judge will give them a traffic court trial, without any finding of flight risk required by the excessive bail clause of the 8^th Amendment to the U.S. Constitution for setting bail? If you think it is proper, do you think the 8^th Amendment does not apply to traffic infraction matters? Do you know of any authority that has said that the 8^th Amendment excessive bail clause does not apply to traffic court matters? If you think it is improper for the judges to demand bail for trial, do you think it is or is not a valid electoral issue that a trial court judge routinely demanded “bail” payments before he would afford the accused persons their constitutional right to trial?

5. Do you agree with the growing use of penalty assessments and fees on traffic and criminal fines, now approaching five times the base fine? Do you agree or disagree that penalty assessments and fees on those fines are a purposeful detour around Proposition 13’s intended limitations on the power of government to increase taxes? Do you agree that those assessments and fees are really taxes with a different label? Do you think the judiciary should be a party to detouring the voting public’s power to limit the ability of government to pass taxes? Do you think that using the judiciary as a glorified but pretentious internal revenue agency is consistent with the high purpose of and for the Third Branch?

6. There seems to be a dramatically increasing use of retired/assigned judges throughout the state. Those judges cannot be removed by the voters at the ballot box, nor do they fall under the jurisdiction of the commission on judicial performance for their misconduct, nor are they required to attend continuing legal education classes. It would appear that the sole criterion for a retired judge to sit on the bench for the rest of his life is whether or not the chief justice likes him. Do you think that sort of personal judiciary, owing allegiance only to the chief justice, is healthy in a republic where there are supposed to be checks and balances on all people exercising the public’s power? Do you think the framers of the state Constitution intended the chief justice to have the power to routinely assign retired judges anywhere for any reason for an unlimited period of time, instead of in specific places for a limited time for a specific and limited emergency? Does the existence of that unlimited sort of judiciary, now around 400 judges, which is solely accountable to the chief justice, smack of judicial despotism? Do you take any steps to make sure the retired judges you assign out to distant communities like ours are up to speed regarding developments in the law? What steps?

7. Do you believe in term limits for trial court judges? Why or why not? Are the tasks for judges more worthy or complex than those of other government functionaries who are subject to term limits? How?

8. You have expressed a desire for the Bar to get involved in improving the public’s perception of the judiciary of this state. Are you satisfied with the overall quality of the judiciary of this state? If the public is not treated with respect by the judges, is there a reason the judiciary should expect respect from the public?

9. Do you think the commission on judicial performance is doing an adequate job of policing the courts? Should it have direct authority over assigned/retired judges and commissioners, who can do as much damage to the system and to the public’s perception of it as can regular sitting judges? If not, why not?

The chief justice is a public servant, as are all judges, and the public has a right to know her thoughts about her execution of the public’s power. And the public’s power it is.

THE FOLLOWING I DID NOT TRY TO POST IN THE SUN BLOG, BECAUSE THEY WOULD HAVE USED THAT AS THE RATIONALIZATION FOR NOT PUBLISHING IT!!!!>>>>>>>>

Part of the horror stories giving rise to these questions is why

I am running for Seat number 2 of the Superior Court for Riverside County

in the June 5 primary election;

Vote for Kennedy for Superior Court Judge, Seat 2

An originalist, constitutional scholar who cannot be bought nor dissuaded.