Amici Curiae: Suckerpunching SCOTUS, Facebooking Judges, and No Googling in China Edition

Facebook and Judicial “Friendship”
If a judge makes Facebook “friends” with a lawyer, is she friends with that lawyer? Could she try a case argued by that “friend” impartially? In the wake of minor controversies involving Facebooking American judges, the Montreal Gazette’s Janice Tibbett writes that Canada’s judiciary is aware of the issues provoked by the social networking site. Showing some judicial restraint, Supreme Court Chief Justice Beverley McLachlin states that “I’m not on Facebook and I don’t intend to be but I wouldn’t like to unnecessarily judge people,” and that she thinks that “the overriding principle that has to guide a judge is that they can’t become involved in debate in matters that would undermine the appearance of impartiality.” While the principle, as Chief Justice McLachlin puts it, is hardly deniable, the issues raised by judges’ Facebook membership in the U.S. have less to do with debate than they do with improper influence and immediate concerns as to trial outcome. In South Carolina, for instance, “the judicial conduct committee ruled that a judge can join Facebook and befriend police and courthouse employees, as long as they refrain from discussing business,” while, in Florida, a judicial ethics committee issued a ruling advising against “friendship” in order to “avoid appearance of conflict in the event they end up in the same courtroom.” The possibility always exists, of course, that there is no issue here at all, that a Facebook-ian “friend”‘s connection to a real-world “friend” exists only by virtue of orthographic coincidence. See, for instance, “writer/thinker” Hal Niedzviecki’s saucer-eyed kitten’s-view piece in the New York Times about Facebook friendship and its attendant disillusionment.

Google v. China
Google made waves earlier this week when it announced that it would no longer censor results on the Chinese version of its core search service. The decision came in response to a “highly sophisticated and targeted” attack on Google’s technology infrastructure, the primary goal of which, Google alleges, was accessing the Google-hosted email accounts of Chinese human rights activists. “These attacks and the surveillance they have uncovered—combined with the attempts over the past year to further limit free speech on the web—have led us to conclude that we should review the feasibility of our business operations in China,” David Drummond, the company’s chief legal officer, explained in their official blog. Evan Osnos, blogging at The New Yorker, observes that Google’s threat, if sincere, “marks a turning point in how the world’s information giants are dealing with an authoritarian regime that has the rare combination of powers to 1) open up vast, lucrative markets, and 2) govern the bounds of freedom within them.” Blogging at the Atlantic, Ben W. Heineman, Jr. of Harvard Law recalls his own experiences working with the Chinese government as general counsel of GE and suggests Google’s actions “will highlight for many corporations—not just in China but in many other difficult business environments around the world (Russia? Nigeria?)—the importance of seeing clearly, before others do, the collision between country law and company ethics and thinking ahead about how to resolve them in light of company values and stakeholder pressures.” Some bloggers suggest the resolution of any ethical tension for Google was made easier by its lackluster performance in the Chinese market. Sarah Lacy, writing at TechCrunch, argues that Google’s decision is “more about business than thwarting evil” and was “aimed at buying Google some good will in the rest of the world.” Chris MacDonald in his Business Ethics blog, however, is willing to take a more generous view of Google, praising the company’s “moral courage,” while he explores some of their leadership’s prior statements about the ethical challenges of business in China. The government in Beijing is yet to offer any formal response to Google’s statement, but in the mean time, The New Yorker reports that Chinese citizens showing up at Google’s Beijing offices to lay flowers and candles in a mock-mourning have been told they need to “apply for permits at the relevant department; otherwise they were conducting an ‘illegal flower tribute.'”

Justice Kennedy’s Posnerian Suckerpunch
Professor Eric A. Posner must have been a long time sharpening his rhetorical knives for SCOTUS Justice Anthony Kennedy. In his review of Frank J. Colluci’s biography of Kennedy in The Decider, The New Republic‘s new book review, Posner says that Kennedy – who has earned a reputation as an undoctrinaire, swing-vote judge – “delights in gaseous pronouncements”, emits “vacuous New Age rhetoric”, and that he “tacks to the political winds or votes his ideological fancy.” Faced with the biographer’s speculation that Kennedy’s Catholic faith informs his jurisprudence, Posner demurs, arguing that the judge’s fidelity to “libertarian” precedents such as Roe v. Wade implies no such thing: “when one thinks about Catholic theology, ‘liberty’ is not the first word that springs to mind.” Posner reserves special venom, though, for what he sees as Kennedy’s approaches to statutory review and the domestic application of international precedent, which he sees as both mealy-mouthed and over-aggressive. Posner attacks the “yawning gap between the constitutional bromides to which Justice Kennedy appeals” and the lack of judicial deference which his opinions display; Kennedy’s “posture…jars democratic sensibilities” and, as bad in Posner’s opinion, raises the “suspicion that Kennedy votes his moral instincts, thus abusing his judicial role.”

Carl Schmitt and Nuremberg
Kevin Jon Heller has an interesting piece in Opinio Juris about German political theorist Carl Schmitt’s close scrape with the prosecutors of the Nuremberg Military Tribunals. Schmitt, who was head of the Union of National-Socialist Jurists, and whose anti-liberal ideas of the right of the state not only to assume extra-constitutional powers, but also to define the state of “exception” justifying that assumption, has of late been the subject of heightened interest. Now that all bets are off and theories like that of the “unitary executive” – e.g., the legal edifice erected by the Office of Legal Counsel in the last Bush Administration – are seen as valid determinants of state power and the ability of the state to suspend checks on that power, the authoritarian rationale is an object of close study by both right and left. Heller, who is writing a book on the Nuremberg tribunals, writes that Schmitt was initially listed as a possible defendant in the Office of the Chief of Counsel’s “Propaganda and Education case”, but he was later excluded as the OCC merged this case with its “Government Administration case”. Heller quotes historian Joseph Bendersky, who says that any case the prosecutors may have had against Schmitt was hobbled by their “superficial grasp” of his ideas and “was all premised upon the faulty assumption that…he had significantly influenced the policies and practises of the Third Reich,” whereas Schmitt’s “turn to Nazism” was simply “an opportunistic path of a morally flawed personality with inherent authoritarian tendencies.” Although Nuremberg prosecutors wanted to bring Schmitt to trial for crimes against peace “as the ‘theorist’ of the Nazis’ aggression”, and although they appear to have sought his participation as a prosecution witness, they “simply failed to uncover anything particularly incriminating” about him.

US high court nixes YouTube streaming of trial
You can put the popcorn down. U.S. federal judge Vaughn Walker, who is presiding over the gay-marriage trial, Perry v. Schwarzenegger, was set to make history this week by being the first judge to open his court room to YouTube. The Ninth Circuit had approved a pilot project for broadcasting civil trials without juries on the basis that it “would promote greater public understanding of the role and function of the federal judiciary.” And then came along the Supreme Court, which put the kaibosh on the whole endeavour. Emily Bazelon, writing in Slate, observes that there are reasonable arguments on both sides. But, she concludes, “at bottom, the question is whether witnesses who are ready to stand up in court and explain why they think gay marriage hurts heterosexual couples and children—or on the other side, why preventing gay couples from marrying stigmatizes them and their families—shouldn’t be ready to see themselves on TV. Why does the value we place on public access to the courts extend to reading the quotes of named witnesses but not to hearing their voices and seeing their expressions?” In its 5-4 per curiam opinion, however, the Supreme Court sidestepped those arguments. Instead, Matt Glenn at Jurist explains, the court found that proper procedures were not followed in that insufficient time was given for public comment on the proposal.”If courts are to require that others follow regular procedures, courts must do so as well,” the majority said. Justice Breyer was joined by Justices Stevens, Ginsburg and Sotomayor in dissent.

Justice Sotomayor has sports-car red fingernails
Justice John Paul Stevens has long shunned White House welcoming ceremonies for new justices. But he showed up for the event honoring Sonia Sotmayor, the newest justice on the U.S. Supreme Court, “telling people that he felt as though he’d known Sotomayor his entire life.” That anecdote is one of dozens in Lauren Collin’s 10,000-plus word profile in the The New Yorker, which goes beyond a strict focus on Number Nine’s judicial philosophy. We learn that Sotomayor enjoys relaxing with her clerks over a game of Texas hold ’em until two o’clock in the morning, that she always wore her bow-tie straight when working in the cafeteria as a student at Princeton and that, yes, she has painted her fingernails sports-car red.