The Honorable Sandra Day O'Connor
Supreme Court of the United States
One First St. NE, Washington D.C. 20543
Dear Justice O'Connor:
I read with interest the entreaty for citizen involvement to save our courts in your article in Parade last month (2/24/08). Is this a two way street? The reason I ask is because I have written to Justice Ginsburg and Chief Justice Roberts on pertinent parallel issues plaguing our courts with no response. Those letters are enclosed. You look at these matters from the top down. My view is from the bottom up. Way at the bottom.
To Justice Ginsburg: I wrote to her in 2006 that judges in Oregon have no accountability. Indeed, a 2004 proposal for statewide evaluations of trial court judges by the Oregon State Bar Board of Governors, on which I served, was killed two years later by political correctness and lack of enthusiasm by Oregon's Supreme Court. You state that "...the long term solution to the politicization of the judiciary process is education". The primary proponent of Oregon's statewide judicial evaluation program was the public member (nonlawyer) on Oregon Bar's Board of Governors , who was an educator. His reasoning for a statewide judicial evaluation program in Oregon was that the public would have a tool to make an informed vote at the polls if there were regular written judicial evaluations of the judges to draw from. There is already a judicial evaluation program in Oregon for administrative law judges. Why should it be any different for trial judges?
To Chief Justice Roberts: Having recently discovered that judges (and justices) often rule, even in de novo cases, without having read the submissions by the lawyers, nor the cases, nor the record; I protested to the Oregon Supreme Court. They answered me not. I then protested to Chief Justice Roberts in 2007 and he did not respond. This problem is rampant at the trial court level, in the Ninth Circuit and at your level. There is a simple remedy. Each judge (and justice) should affirm in writing before any ruling that they have read the submissions by the lawyers, the record and the cases cited. This would prevent a judge from 'winging it' and gain the respect of the public for the rule of law and our judiciary.
My experience is unique. I have physically worked in every geographical subdivision of the United States as a lawyer. As a lawyer I have been responsible for complex litigation across the entire country ending up as a senior officer of a major corporation on Wall Street before entering private practice. In those thirty years I can affirm that judges (and justices) do not follow the rule of law. Indeed, it is observed that Justice Clarence Thomas does not even believe in stare decisis; that he follows natural law which is not the same as your requirement to follow common law. See Jeffrey Tobin The Nine, Page 102 (2007). One need not even mention Bush v. Gore.
In your article you state that politics is threatening the rule of law in the U.S. today. It is worse than that. Regardless of politics, judges are not following the rule of law at any level of our dysfunctional legal system.
Leaders in our profession treat the unwashed lawyer at the ground level like pip-squeaks. This week Admiral Fallon resigned as the top military leader responsible for Iran among other CENTCOM countries. It is reported that his departure occurred because he stood in the way of President Bush attacking Iran now. In 1953, Kermit Roosevelt along with our CIA under Allen Dulles and President Eisenhower caused a coup to overthrow the democratically elected prime minister of Iran, Mohammad Mossedegh. Britain's Lord Fraser, First Lord of the Admiralty, in promoting this unfortunate coup to protect their oil concession declared that Britain would not tolerate "...being pushed around by Persian pip-squeaks." The United States and Britain have paid dearly for not adhering to the rule of law and democratic principles when it comes to dealing with pip-squeaks.
Mohammad Mossedegh is now viewed as a visionary who favored democracy and who was opposed to dictatorial rule according to the most knowledgeable historical commentators. Stephen Kinzer, All The Shah's Men, Wiley Press, (2008) President Truman paid attention and supported Mossedegh. President Eisenhower did not pay attention and deferred to the Dulles brothers who had an agenda of their own in deposing him. President Eisenhower should have paid attention.
Thank you for your interest in these matters.
Very truly yours,