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The Choice: Judge Sotomayor’s Ethnicity v. Equal Justice Under Law (an honest Lawyer)
-From: Kathy Mattinson
Sent: Wednesday, May 20, 2009 10:51 PM
Subject: The Choice: Judge Sotomayor’s Ethnicity v. Equal Justice Under Law (an honest Lawyer)
Dr. Richard Cordero, Esq.
Ph.D., University of Cambridge, England 59 Crescent Street, Brooklyn, NY 11208
M.B.A., University of Michigan Business School Dr.Richard.Cordero.Esq@gmail.com
D.E.A., La Sorbonne, Paris tel. (718) 827-9521
May 19, 2009
The Choice: Judge Sotomayor’s Ethnicity v. Equal Justice Under Law
In a recent email concerning CA2 Judge Sotomayor and the opportunity to nominate her to fill the upcoming Supreme Court vacancy, the emailer asked,
"Are we looking for symbolism or substance?, because I will only support her if it is the latter." Let‟s consider a summary1 of some issues, in the space of one page, that are appropriate to answer that question and ask where the Judge stands on them. Their appropriateness rests on the fact that they concern the essence of the fair administration of "Equal Justice Under Law" and judicial integrity affecting all cases. Hence, there is no reason for a potential or actual nominee not to address them by claiming that to do so would prejudice the outcome of future cases before her or him. As you read the summarized issues below, ask yourself whether any adverse effect on your professional success that they may have does not „count‟ because the judge belongs to your ethnic group or is from your state.
1.
Pro-forma justice through summary judgment orders and unpublishable opinions.2 Your client pays CA2 the appeal filing fee of $455 as one of the "fees to be charged for services provided by the courts of appeals".3 The main service is to have it provide a dispositive answer to the "Issues presented for review". (FRAP 28(a)(5))4 A contract for services arises therefrom. However, CA2 implements its policy of caseload clearing through expediency "to utilize judicial time effectively" (FRAP CA2 Local Rule 32.1)5 The result is that "Approximately 75% of all cases are decided by summary order [, which] have no precedential authority."6 As such, those orders do not bind any judge in the circuit. Necessarily so since in the overwhelming majority of cases their only operative word is "AFFIRMED" or "DISMISSED" because they do not address, let alone answer, the questions presented. A reversal would require CA2 to state the reversible error and its legal grounds, how to avoid it on remand, what issues to retry, what evidence to include or exclude, etc.…time-con-suming details that defeat expediency. Now tell your client that neither the order is a mockery of justice and a breach of contract nor you are a bad lawyer, because the judge shares your ethnicity.2.
Non-publication of orders and opinions protects their cursoriness. In the 12 regional circuit courts the overwhelming majority of all "Opinion[s] or Order[s] Filed In Cases Terminated on the Merits After Oral Hearing or Submission on Briefs" is unpublished: 81.8%, but in CA2 it is 86.7%.7 They are practically unavailable and unknowable and meant to become secret since they are neither to be sought nor worth seeking given their non-precedential character. Even when they are "reasoned" and signed, CA2 judges themselves deemed them of such poor quality that they leave 86.5% of them unpublished. This allows for arbitrary, unprincipled, and capricious decision-making. They are not vehicles „to do justice that must be seen done in public‟; they are expedients of justice ashamed. They result from denial of equal protection. The 11% of litigants that got their day in court with a reasoned, signed, and published opinion paid the same $455 filing fee as the 89% who read on its closed door a rubberstamped summary judgment form or the announcement of unpublishable "reasons". Did the ethnic judge help you build your reputation by her giving you 8 in 9 chances of your being dispatched with a cursory fiat, which assures its unreviewability?3.
T-1080 Motion Information Statement to avoid reading by circling DENIED or GRANTED.8 CA2 Local Rule 27 requires this form to accompany each motion as its top page. The movant must "Set forth below precise, complete statement of relief sough"…because the judges cannot bother to flip to the last page to read it there. That assumes that a judge will read it. The form itself reads "FOR THE COURT: CATHERINE O‟HAGAN WOLFE, Clerk of Court, By: ____________" This means that disposition of the motion is not even by the Clerk of Court, but rather by a subordinate clerk, who need not be a staff lawyer. So why would the judges ever bother to read yourDr R Cordero, http://Judicial-Discipline-Reform.org/SCt_nominee/JSotomayor_v_Equal_Justice_19may9.pdf 2
researched
"memorandum…with legal arguments" required under Local Rule 27 –or your brief– when a clerk can circle "DENIED" or "GRANTED" and get rid of it? In fact, CA2 judges have adopted "§ 0.18. Entry of Orders by the Clerk" providing that "The clerk shall prepare, sign and enter the following without submission to the court or a judge unless otherwise directed". By the same token, judges can craft, whether in an unpublished writing or through practice, „Directions for Issuance by the Expediency Clerk‟ of any motion-disposing or summary order concerning appeals that, for example, fall below a certain amount in controversy; involve a small law firm client against a big defendant able to appeal to the Supreme Court and embarrass CA2 on a cursory opinion; or lead to…4.
Incrimination in tolerating or running a bankruptcy fraud scheme. In FY08 there were filed 1,043,993 new bankruptcy cases. This represented a 30% increase over the 801,269 in FY07. Yet the number of such type of case filed in the regional circuit courts of appeals decreased 9% from 845 to 773.9 This means that bankruptcy judges disposing of $10s of bls. annually were all but sure that whatever they decided would stand since only 0.07% of all bankruptcy cases went to the appeals courts or only 1 in every 1,351 cases. Yet, 61,104 appeals were filed in those courts. Moreover, since bankruptcy judges are appointed by circuit judges10, the former are further assured that the latter will not overturn their rulings on appeal, for that would call into question their capacity to appoint competent bankruptcy judges as well as colle-gial complicity. Judges that dispose of $10s of bls. however they want with no adverse conse-quences have the most powerful incentive to engage in wrongdoing: riskless enormous profit.5.
Systematic self-exemption from judicial discipline. Circuit judges benefit from such riskless-ness, for they assure it. In the system of self-discipline set up in the Judicial Conduct and Disability Act11, they dispose of complaints against federal judges filed by any person. In the 1oct96-30sep8 reported period, they abused that power by dismissing with no investigation 99.86% of the 9,140 complaints filed.12 Of the thousands of judges that served during those 12 years –2,153 in 2008 alone13- only 11 received any discipline. They held themselves unaccount-able, thus protecting their effective unimpeachability: only 7 judges have been removed in the 220 years since 178914. Yet, they wielded power over people‟s property, liberty, and life. Hence, they have absolute power, the kind that corrupts absolutely. Judge Sotomayor is a member of the Judicial Council, 2nd Cir., which during those 12 years denied 100% of petitions to review com-plaint dismissals.15 She would not protect you from a corrupt judge, regardless of your ethnicity.6.
Judge Sotomayor’s participation in a bankruptcy fraud scheme cover-up. With that attitude, Judge Sotomayor and other colleagues of her decided the DeLano case, which is pending before the Supreme Court.16 They ruled in favor of their appointed bankruptcy judge‟s non-disclosure of the whereabouts of at least $673,657 of the most unlikely of „bankrupts‟: a 39-year veteran banker who at the time of filing for bankruptcy was an M&T Bank bankruptcy officer! To protect such concealment of assets by a bankruptcy system insider preparing his debt-free golden retirement, they denied every single document in all creditor-requests intended to expose where the banker had stashed his salary and other receipts during his working life. Such denials were blatant violations of discovery rights. But when the top judges do wrong, those below them do whatever they want. Due process is nobody‟s doing, not even Judge Sotomayor‟s.You can use the process of nominating and confirming a new Justice to expose through a Watergate-like
Follow the Money! investigation the institutionalized wrongdoing of Judge Sotomayor17 and her colleagues and thus contribute to "Equal Justice Under Law" regardless of ethnicity. This is your a opportunity to become the Woodward/Bernstein of our generation. Use it to establish your professional reputation and render meritorious service to millions of litigants and the public at large who receive or are denied justice at the mercy of judges that administer it without having to worry about being held accountable and subject to discipline. To that end, I offer to make a presentation of the evidence and the investigation before your association. Dr R Cordero, http://Judicial-Discipline-Reform.org/SCt_nominee/JSotomayor_v_Equal_Justice_19may9.pdf 3 1 See Petition to the U.S. Supreme Court for certiorari to the Court of Appeals for the Second Circuit, Richard Cordero v. David DeLano et ux. , docket 08-8382; http://Judicial-Discipline- Reform.org/US_writ/DrCordero-SCt_petition_3oct8.pdf >US:2467§XIII.A-B. 2 Comments on the proposed permanent adoption of interim Local Rule § 0.23 on Summary Order without any opinion or appended explanatory statement; http://Judicial-Discipline- Reform.org/docs/CA2_summary_orders_19dec6.pdf. 3 Judicial Conference Schedules of Fees Court of Appeals Miscellaneous Fee Schedule (Issued in accordance with 28 U.S.C. §1913. Effective 01/01/2007);Federal Civil Judicial Procedure and Rules, 2008 Ed., Thomson West, p. 1014. 4 Federal Rules of Appellate Procedure and Local Rules of the Second Circuit; http://www.ca2.uscourts.gov/rules.htm. 5 Id. 6 http://www.ca2.uscourts.gov/clerk.htm >2nd Circuit Handbook, pg.17. 7 Unpublished opinions; Table S-3; U.S. Courts of Appeals—Types of Opinions or Orders Filed in Cases Terminated on the Merits After Oral Hearings or Submission on Briefs During the 12-Month Period Ending September 30, 2008; Judicial Business of the U.S. Courts, 2008 Annual Report of the Director of the Administrative Office of the U.S. Courts (AO), James C. Duff; http://www.uscourts.gov/judbus2008/JudicialBusinespdfversion.pdf >p.44. 8 http://www.ca2.uscourts.gov/forms.htm >T-1080 (Motion Information Statement), PDF fillable, MS Word. 9 http://www.uscourts.gov/ttb/2009- 01/article02.cfm?WT.cg_n=TTB_Jan09_article02_teaserTitle; also at http://Judicial- Discipline-Reform.org/statistics&tables/caseload_SCt_report_08.pdf. 10 28 U.S.C. §152. Appointment of bankruptcy judges; http://Judicial-Discipline- Reform.org/docs/28usc151-159_bkr_judges.pdf. 11 28 U.S.C. §§351-364. Judicial Conduct and Disability Act of 1980; http://Judicial-Discipline- Reform.org/docs/28usc351_Conduct_complaints.pdf. 12 Table S-22 [previously S-23 & S-24] Report of Complaints Filed and Action Taken Under Authority of 28 U.S.C. §§351-364, produced by the Administrative Office of the U.S. Courts pursuant to 28 U.S.C. §604(h)(2); http://www.uscourts.gov/judbususc/judbus.html; see also 28 U.S.C. §332(g); collected at http://Judicial-Discipline- Reform.org/statistics&tables/jud_complaints/complaint_graphs_tables.pdf. 13 http://Judicial-Discipline-Reform.org/statistics&tables/num_jud_officers/jud_officers_08.pdf. 14 http://www.fjc.gov/history/home.nsf >Judges of the U.S. Courts>Impeachments of Federal Judges. 15 Fn. 13 supra. See also http://Judicial-Discipline- Reform.org/JNinfo/25Committee/2DrCordero-petition_25feb9.pdf >N:51¶¶1-4. 16 Fn. 1 supra, Petition for certiorari, 08-8382, SCt, at US:2456§X. The decision in In re DeLano , 06-4780, CA2, by the CA2 panel of which Judge Sotomayor was a member is an exhibit therein at CA:2180. See also the appeal brief in CA2; http://Judicial-Discipline- Reform.org/docs/DrCordero_v_DeLano_06_4780_CA2.pdf >CA:1746§IX. 17 "Sotomayor Rose High, with Few Assets", Joe Stephens, The Washington Post, May 7, 2009; http://voices.washingtonpost.com/44/2009/05/07/sotomayor_rose_high_with_few_a.html?sid= ST2009050702123; and "N.Y Federal Judge Likely on Shortlist", Keith B. Richburg, The Washington Post, May 7, 2009; http://www.washingtonpost.com/wp- dyn/content/article/2009/05/06/AR2009050603762.html. ©2009 Richard Cordero. All rights reserved. Permission is hereby granted for distributing or reprinting this article in its entirety without modification and with appropriate credit to the author and the website at http://Judicial-Discipline-Reform.org. If the endnotes are not included, a statement must be made that "The endnotes [1-17] can be found at http://Judicial-Discipline- Reform.org/SCt_nominee/JSotomayor_v_Equal_Justice_19may9.pdf. That file opens with Adobe Acrobat and Adobe Reader v. 7 or higher. The latter can be downloaded for free from www.Adobe.com.