The Judiciary:
The argument before the First Circuit Court of Appeals on whether Judge Richard Stearns should step down from handling the Whitey Bulger case happened on January 8 of this year. The issue seemed quite simple and clear-cut. It called for a yes or no answer. The judges on the panel were the most prominent that could be assembled in this area including a former Supreme Court justice and the chief justice of that court. I’m surprised that they didn’t agree within minutes of leaving the bench, give the answer, and offer a simple explanation for their decision.
It has now been a half a hundred days for the court to decide this. If you ever pause to wonder why it takes so long for anything to be done in the federal judicial system just remember this and you’ll have your answer. If you’re ever told, “why make a federal case out of it?”— you’ll understand better the expression.
I’ve had this feeling the federal system has been off kilter and walking to its own strange tune recently. Probably since the time of the Patriot Act. Watching developments since then I’ve had a weirdly un-American feeling that if a person is wrongfully scooped up by some federal agency she could end up being held for years or possibly forever before she could gain relief. The judiciary has become so deferential that all the executive has to do is shout that she is some sort of threat to the homeland and she won’t even get a hearing.
It appears that the powers of the executive utilized through the various police agencies like Homeland Security (why does that term sound so like 1930s Germany) have significantly increased while the judiciary has taken a laissez-faire attitude — “give us our paycheck and perks and leave us alone.” Combine that with its snail-like approach to handling matters leaves me feeling the judiciary has become less and less the preserver of our rights and liberties.
Pretty soon those nice inscriptions setting out the sayings of prominent Americans on the front of the federal courthouse on the harbor will have to come down. They will be replaced by the words Dickens suggested be placed above the door of the Court of Chancery in England: “Suffer any wrong that can be done you rather than come here!”
No matter how the First Circuit rules, the losing side of the recusal issue will likely appeal to the very end of the road. The First Circuit has tremendous incentive to cover its own flank (a primary function of all federal bureaucrats). The First Circuit also has substantial incentive to cover the flank of it’s esteemed colleague, Richard Stearns. Avoiding embarrassment under these circumstances is laborious and time consuming. A lengthy and complex ruling should appease the media and give the opinion the appearance of reasoned legitimacy.
Patty:
Jim P who comments here seems to think it’s two against one in the hidden depths of the courthouse and they’re trying to have a unanimous decision. On one hand they could have easily thrown Carney’s appeal out saying it was premature and any harm could be rectified on appeal (long after Whitey let the scene). I though that would be the outcome because some of Carney’s argument was based on the cost of a retrial if the case was tipped but Whitey’s case will never be tipped even if Stevie Davis and Stippo Rakes are allowed to be jurors so his argument ws going nowhere.
An appeal from the First Circuit would not be heard by the Supreme Court so I don’t see that happening. The First Circuit is faced with the problem of intra-judicial relationships. Judge Stearns is a well respected member of the court so it is difficult to tell him he should step down and have to talk to him the next day. That, of course, will play into any decision. Of course the First Circuit wants to look judicial and serious and to do that it will write a “laborious and time consuming” opinion. I don’t think it worries about the media. The media doesn’t care who the ring master is as long as the show goes on.
Spot on, Matt