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Friday, April 22, 2005
Judge Ed Carnes: Judicial Iconoclast
Here's an interesting post to an article about a recent opinion by Judge Ed Carnes of the 11th Circuit, in which Judge Carnes, defending an opinion holding that a person sentenced under the sentencing guidelines, when they were mandatory, could not challenge the sentence post-Booker absent a showing of a reasonable probability that the sentence would have been different if the guidelines were advisory, takes on Judges Barkett and Tjoflat from his own circuit and Judge Posner (my own American Idol). Strong language.
I haven't read the opinions and am not a crim pro expert, so I express no opinion. But I clerked for Judge Carnes, for whom I have great personal and professional regard, and think it a nice time to point out a pleasant irony about judicial appointment that has been noted at least since TR appointed Holmes. Judge Carnes's confirmation was fiercely opposed by the Senate Democrats, on the assumption that he would be a fierce ideological judicial conservative. And he is generally conservative (to apply an imperfectly fitting phrase) on criminal law issues. Yet he is now as likely to go down in history as the judge
who affirmed an order removing the Ten Commandments from the Alabama Supreme Court building, in very strong terms; and who served on the appellate panel in the Schiavo case. For both of these reasons, I assume he is one of the judges who fell within the category of Tom DeLay's threats. This suggests yet again that, where lifetime tenure is concerned, the issues you think will encapsulate a judge's career may not be the issues that actually shape his career, and the invective you launch at a nominee may not reflect how that person actually serves as a judge.
I fear, though, that too many such events have taught judicial appointers the wrong lesson -- don't just appoint someone who has been congenial to your side on some issues, but appoint someone who has more or less promised they will be congenial on all issues, come what may. For my own part, I would rather see the bench made up of a substantial number of good, smart, non-ideological technocrats, who will follow precedent loyally if unimaginatively, and a smaller but crucial number of pure geniuses, regardless of their ideological stripe, to add the necessary catalytic element that conduces to the sensible growth of the law. Be willing to be surprised. Take a few chances. As always, this applies with equal opportunity to both parties. The Democrats should be willing to nominate a Kozinski, and the Republicans a Calabresi. (As a rule of thumb, I think this boils down to a rule of "more Posners -- but for God's sake, not too many.")
Posted by Paul Horwitz on April 22, 2005 at 04:35 AM in Criminal Law | Permalink
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Comments
Judge Carnes is a great thinker-writer? Maybe when it comes to criminals. But when it comes to the disabled, Judge Carnes has such an aversion to and misconception about people with communication-disabillities who use assistive technology reasonable accommodations, such as Schiavo, and myself (autistic), that he gets as sloppy as a first year law student. In my bar admission assistive technology accessibility and non-standardized examination case, Appeal No. 04-16623-C, Judge Carnes apparently harbored such an ingrained stereotype that autistics are idiots that he did not bother to check the United States Supreme Court slip opinions for Mar. 30, 2005 to ascertain that the Exxon Mobil Corp. case significantly changed the Rooker-Feldman issue so prominent in bar admission cases, before entering an Order on Mar. 31, 2005 based on pre-Exxon Rooker-Feldman case law that the ADA disability discrimination lawsuit was "frivolous." There is no excuse for a Circuit Judge at this level to so disregard the rights of the disabled. Maybe House Speaker DeLay has a valid point about the competence and fairness of the conservative Judiciary.
Posted by: Mary Katherine Day-Petrano | Apr 22, 2005 11:50:38 AM
Judge Carnes is no judicial iconoclast. Judge Carnes is a man angling himself for a seat on the Supreme Court. He is a "conservative" judicial activist. In his opinions, he often alters the law to reach the outcome that best fits his conservative political views. Regardless of the end result, a judicial activist is a judicial activist. Those with conservative judicial philosophies should reject Judge Carnes as one sitting in the same camp as Judge Reinhardt and the like.
Posted by: Anonymous | Apr 25, 2005 8:53:18 AM
I agree with the above comment about Judge Carnes angling for political advantage. Evidently it came to his attention I blogged here about his failure to check the slip opinions of the Supreme Court from the day before his first Order in my case. On rehearing, Judges Carnes and Marcus punished me for exercising First Amendment blogging activities (criticism) and came back to rule my bar admission/driver's licensing/State Court services appeal was "frivolous" even as to applications of the Eleventh Amendment to State Court services, on the ground Garrett was the case that applied to State Court services -- rather than Tennessee v. Lane. In sum, to use the words of Howard Bashman in his LA Times Op-Ed, this amounted to judicial insubordination by Carnes and Marcus to the Supreme Court's binding precendent in Tenessee v. Lane (clearly rejecting Garret's erection of an Eleventh Amendment bar in the area of State Court services).
It would appear Judges Carnes and Marcus thumbed their noses at the Supreme Court's authority and dared the Supreme Court whether or not they would vote to take my case up on Certiorari -- gambling that they can get away with flouting Supreme Court authority because I am a mere nobody autistic who just wants reasonable accommodations in the State Courts, on driver's licensing written examinations, and the bar admission process -- where they have been denied to me for 15 years, placing me in the class of "amateur passers of the California Bar Examination.' PGA Tours (Scalia, J. and Thomas, J. dissenting).
Maybe judicial activism to the extreme of judical insubordination is the new qualification criteria for judicial nomination to the Supreme Court...
Perhaps someone should ask Senator Frist.
Posted by: Mary Katherine Day-Petrano | May 29, 2005 2:55:52 PM
I've only spoken to Judge Carnes once, but he came across as a very polite, articulate and intelligent person. I've heard a number of good things about him from various people who know him, to which I can add Paul's post.
Posted by: Kaimi | Jun 3, 2005 1:27:13 PM
Judge Ed Carnes is not as good a judge as you seem to suggest. Judge Carnes, or someone purporting to speak for Judge Carnes in official documents have used "unpublished opinions" to undermine the "rule of law" and to conceal the outrageous and judicial misconduct of U.S. District Judge Donald L. Graham. It is really ironic and quite hypocritical in that Judge Carnes would be directly involved in concealing judicial misconduct and judicial activism. I guess the conservative mantra about being responsible for your actions does not apply to conservative judges. After reading the material and Judge Carnes' opinions, one can only conclude that Judge Donald L. Graham is clearly above the law. Judge Carnes has been involved in some really bad decisions or "junk law" that can only be applied through the use of "unpublished opinions".
Judge Carnes simply ignored allegations of misconduct directed at Judge Donald L. Graham that included, but is not limited, to the following:
1. Judge Graham lied and intentionally misrepresented the law.
2. Judge Graham usurped legal authority by telling a non-lawyer Plaintiff that he needed the permission of a private law firm [Maria Sorolis, Allen, Norton & Blue] to speak with his Government out of court. Additionally, Judge Graham's court told this same person that he needed the permission of this same private law firm to seek Public Records under Florida Law.
3. Judge Graham refused to rule on a motion for a preliminary injunction that was submitted by the Plaintiff for more than 17 months.
4. Judge Graham allowed scores of pretrial motions to languish without taking any action.
5. Judge Graham completed a false Civil Justice Reform Act report (CJRA) by concealing the fact that he had a motion for a preliminary injunction pending for more than six months.
6. Judge Graham took an illegal "filing injunction" and made that filing injunction the basis of a criminal contempt complaint.
7. Judge Graham issued the "filing injunction" sua sponte without due process and notice and opportunity to be heard.
8. Judge Graham and misstated material facts in order to justify the "filing injunction"
Chief Judge J.L. Edmondson is aware of all of these allegations of misconduct against Judge Graham, but he claims he is unable to do anything because these allegations are "directly related to merits". Incredible, but true. Section 372(c) Complaints No. 05-0008,01-0054, and 02-0052.
Judge Ed Carnes told a litigant that he does not have a right to have his motion decided by the district judge, Donald L. Graham. You don't believe, then see the website:
http://mmason.freeshell.org/junklaw/NoRightToHaveMotionDecided.html
There is is a fascinating and incredible story about how federal Judge Donald L. Graham and the Eleventh Circuit, US Court of Appeals, used an illegal and void order and unpublished opinions to convict a man of criminal contempt. The story is really outrageous and seemingly fanciful, but it is fully documented. This story is guaranteed to offend you and scare you at the same time. It is hard to believe that something like this happens in America. Judicial Misconduct of the type documented here simply cannot be tolerated in the United States. I challenge you to read this material and not be made nauseated by it.
See
http://mmason.freeshell.org/junklaw/FilingInjunction.html
The Eleventh Circuit and Judge Ed Carnes [more likely staff attorneys or law clerks who act as "gatekeepers] can and does undermine meaningful appellate review when a fellow judge is attacked for misconduct. For example, the Eleventh Circuit struck a brief for arguing an order ostensibly because the order was "beyond the scope of appeal". However, in a really despicable and dishonest act, the Eleventh Circuit then turned around and used the same order that they said was "beyond the scope of appeal" to affirm the district judge [Judge Graham]. The Eleventh Circuit used an order that was rendered on September 20, 2001 to justify their opinion in a case that was noticed for appeal on June 25, 2001. Laslty, and certainly not least, even though the Appellant alleged all manner of misconduct against Judge Graham and asserted that Judge Graham failed to recuse himself, the Eleventh Circuit simply ignored the issue. Under the present system, judges can undermine appeal rights to conceal misconduct on the part of a fellow judge. Want documented proof?
The following website will give you all the proof you need:
http://mmason.freeshell.org/junklaw/FilingInjunction.html
See also http://mmason.freeshell.org/junklaw/NoMandamusReviewRight.html
to see how petition for mandamus is simply ignored.
Posted by: Horrace Jones | Dec 16, 2005 6:31:34 PM
Paul, interesting post. You know from working in Judge Carnes' chambers that about 95% of appeals are no brainers anyway. Even the ultraliberal clerk during my term mostly agreed with him on cases...most cases just don't invite a lot of controversy.
Judge Carnes' strong suit has always been his open mind and strong work ethic, anyway. It doesn't surprise me when he takes a "liberal" position or a "conservative" position, because he's almost always the most prepared judge on the panel and has completely thought through the issues.
Hope all is well. (I found this post as I was trying to dig up his chambers phone number).
Posted by: Chris Winters | Jan 30, 2006 2:17:14 PM
The Democrats should be willing to nominate a Kozinski, and the Republicans a CalabresiSure, I'd nominate Steve Calabresi any day. ;)
(Actually, my pet idea is to nominate Judge Sykes for the next SCOTUS vacancy, and nominate Prof. Calabresi to her CA7 seat. A chap can dream...)
Posted by: Simon | Jan 30, 2006 2:29:36 PM
Maybe House Speaker DeLay has a valid point about the competence and fairness of the conservative Judiciary.To the great relief of virtually everyone, Rep. DeLay was never the Speaker of the House - he was the Majority Leader until last fall. Here's to term limits (or at least, rotation) in the GOP leadership...
Posted by: Simon | Jan 30, 2006 2:31:16 PM
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