Slate refuses 'equal time'
The South Dakota Amendment E
Piece Slate Magazine Refused to Publish
By: Gary L. Zerman*
South Dakota Judicial Accountability’s
(sponsors of “Amendment E” on the 2006
ballot) reply to Bert Brandenburg’s
(Executive Director, Justice At Stake -JAS),
Slate pieces “Rushmore to Judgment,”
March 14, and “Bench-Clearing Brawl,”
July 28, 2006.
About impeachment, Brandenburg wrote “And judges
every where can be impeached for misconduct.”
Really? Name the last judge impeached? Federal
or state. At SDJA we say, “Impeachment’s
like Haley’s Comet, it comes around once every
76 years.” Moreover, over 99% of the
misconduct complaints against federal judges,
year-in-year-out are dismissed without
discipline imposed. As Justice Kozinski (9th
Cir.) to his credit wrote, in his dissent
against the dismissal (the 3rd and
final time) of the complaint against Judge
Real:"... It does not inspire confidence in the
federal judiciary when we treat our own so much
better than everybody else." Bingo!
They claim it’s all about judicial independence.
For a total debunking of their claim that
immunity is required for independence, see
Justice Douglas’ lone dissent in
Pierson v. Ray, 386 US 547, 558
(1967). And what about the judges’ misconduct
documented in all the recent articles about
“Judicial Junkets” and “Juice vs. Justice”?
No, the People won’t be fooled anymore. It’s
about judicial accountability. Now!
Brandenburg’s hysterical hyperbole continued in
Rushmore, writing our initiative would “…
wipe out a basic doctrine called judicial
immunity that dates back to the 13th
century, protecting judges from personal
liability from doing their jobs on the cases
before them. A special grand jury – essentially
a fourth branch of government – would be created
to indict judges…” He didn’t tell you the
doctrine actually is absolute judicial
immunity (AJI), and it covers corrupt and
malicious judicial acts, even - eugenics. See
Stump v. Sparkman, 435 US 349
(1978), a 5/3 decision, giving Judge Stump
immunity, after he illegally ordered a
15-year-old girl sterilized; she never appeared
in court, nor had counsel or any representation,
was lied to and told she was having an
appendectomy, and had no appeal – the
sterilization irreversible. Nor did he tell you
the three (3) dissenting justices were repulsed
by Judge Stump’s behavior; so were the federal
appellate justices, who voted 3/0 against
immunity for Stump. The total vote in the case
(district, appellate and Supreme Court) was 6/6.
Thus the doctrine of absolute immunity is not so
absolute – even among judges.
The 13th century was the only
authority Brandenburg could muster in his pieces
for judicial immunity. (That era gave us the
divine right of kings, the Black Plague,
beheading, drawing & quartering, serfdom and
most thought the earth was flat.) That’s the
best he can do? He omitted, like most of our
critics, and the media, to provide you our core
1) there is no authority in our Constitution
giving immunity to judges (nor do any USSC cases
on AJI ever cite any);
2) judges giving judges AJI violates the
doctrine of separation of powers - the so-called
checks & balances (nor do any USSC cases mention
3) AJI turns the sovereignty of We the People on
its head, placing the judiciary over, above and
beyond the People, making the servant the
4) why has our USSC condoned eugenics?
Stump v. Sparkman.
NOTE: Neither Chief Justice Roberts, nor
Justice Alito, were asked any of these questions
at their recent Senate Judiciary Committee
Checks & balances? Phooey.
Brandenburg wrote in Bench-Clearing Brawl,
the “… initiative would amend the state
constitution to create a fourth branch of
government: a special grand jury to sue judges
and others for their decisions.” Here he
demonstrates his fundamental misunderstanding of
our Constitution. And that is dangerous. First,
he ignores that the Constitution was designed to
limit the power of government - not the People.
All power resides in the People. Government gets
its just powers from the consent of the
governed. We never gave judges immunity. Second,
he ignores that We the People are sovereign. Our
Constitution starts: “We The People.” -- NOT we
the government, nor we the judiciary. We are not
a “branch” of government. We are the tree, the
trunk, the roots. We are the masters -
government is our servant, mere branches.
Actually, with their dereliction to true checks
& balances, they could be termed “The Three
Kelo v. City of New London? That’s
the 5/4 eminent domain case, where the Kelo 5
wiped out the “public use” clause of the 5th
Amendment. Where was President Bush? Silent.
Where was Congress? Hardly a whimper. To their
credit, great dissents were written by Justices
O’Connor and Thomas. O’Connor later told an
audience of ASU law students that Kelo
was “pretty scary” and “fuzzy jurisprudence.” Is
Justice O’Connor a court basher too?
A further example:Illegal immigration.
Plyler v. Doe, 457 US 202 (1982),
another 5/4 decision, that opened the
floodgates, and left the People - to pay the
Finally, Brandenburg concludes Brawl:
“The courts that protect our rights need their
own permanent campaign to counter the war rooms
arrayed against them.” But aren’t we always told
that the judiciary is non-political, above the
fray, independent? So instead of holding
miscreant judges accountable, Brandenburg and
cronies want the judiciary to go on a permanent
campaign. He’s admitted what we knew all along:
the judiciary’s mostly just a bunch of
politicos, junkets, juice and all, just like the
other two twigs.
All we ask is a most basic covenant of life,
something we all owe and ask of each other: individual
The People vehemently disagree with you Mr.
Brandenburg. Readers check out the blogs at
Jurisprudence Discussion. Honestly, Mr.
Brandenburg does not work for us. Mr.
Brandenburg please write some more pieces. And
Slate please publish them.
*Gary L. Zerman
is an attorney licensed in California and
Arizona. He is counsel and a media
representative for South Dakota Judicial
Accountability Committee – SDJA – a grass
roots citizens group, the sponsors of
Call for a federal inspector general over
4/25/06 Associated Press, 2 Lawmakers Call
for Judiciary Watchdog, by Laurie Kellman;
4/27/06 U.S. Newswire, Sennsenbrenner,
Grassley Introduce Legislation Establishing an
Inspector General for the Judicial Branch;
5/22/06 Los Angeles Daily Journal, Criticism
Mounts That Judiciary Lacks Self Discipline –
Congressman Wants An Inspector General To Ensure
Unethical Judges Are Punished, by Lawrence
Judge Manuel Real.
1/18/04 LA Times, Judge [Real] May
Face Sanctions, by Henry Weinstein; 10/3/05
Metropolitan News-Enterprise, Ninth Circuit
Panel Tosses Misconduct Case Against Manuel Real,
by Kenneth Ofgand; 12/6/05 Contra Costa Times
(LA Times), DuPont Racketeering Suits
Reinstated, by Myron Levin; 5/7/06 LA Times,
Complaint Against Judge Has Broader
Ramifications, by Henry Weinstein; 7/28/06
LA Times Editorial, Judicial Undersight.
6/2/06 Los Angeles Daily Journal,
Chief Judge to Set Up Panel for 7-Year-Old
Misconduct Case, by Amelia Hansen.
1/18/06 San Jose Mercury News-Associated
Press, House Chairman Seek Probe, Possible
Impeachment of LA Judge, by Erica Werner;
1/19/06 Los angels Daily Journal,
Congressman’s Gambit Puts Judge on Path to
Impeachment, by Lawrence Hurley; 7/18/06 LA
Times, Impeachment Inquiry of Judge Sought,
by Henry Weinstein.
Impeachment of federal judges.
See U.S. v. Hastings, 681 F.2d 706
(1982), at 709, footnote 7, stating “Nine
federal judges have been impeached and brought
to trial before the Senate.” That would be only
nine judges over 193 years, at that time.
99% of complaints against federal
judges–dismissed w/o discipline.
8/7/02 Las Vegas review Journal – Associated
Press, Self-policing Federal Judges Rarely
Impose Penalties, by Anne Gearan, which
reported that “Of 766 ethical complaints last
year , only one resulted in a penalty…
[P] In the single case last year in which the
judge was punished, the penalty was a private
censure and no details, not even the judge’s
name were released.” 1/766 is .0013!;
8/7/02 Los Angeles Daily Journal (same AP
article, extended version), Federal Judges
Seldom Discipline Colleagues; 1/18/04 LA
Times, Judge [Real] May Face
Sanctions, by Henry Weinstein, which
reported “…More than 99% of the complaints
filed against federal judges around the country
are dismissed out of hand. The 9th
Circuit Judicial Council has reprimanded only
two jurists in the last decade, while rejecting
hundreds of complaints, according to official
Justice Alex Kozinski, 9th Circuit
Court of Appeals - dissent.
10/1/05 The Recorder, 9th
Circuit’s Kozinski Blasts L.A. Judge, Majority
in Discipline Case, by Justine Scheck;
10/1/06 LA Times, L.A. Judge Avoids Sanctions
by Panel – A Judicial Council does not Punish
the Federal Jurist, Who Improperly Took Over a
Bankruptcy Case – Two Judges File blistering
Dissents, by Henry Weinstein10/3/05.
For Justice Kozinski’s dissent, see In
Complaint of Judicial Misconduct,
No. 03-89037, Order, filed September 27,
2005, (9th Cir. Judicial Council).
12/20/04 Law.com-Associated Press, Senate
Seek Legislation on Ethics for Judicial Trips,
by Jim Abrams; 1/12/06 Human Event,
Justice by Junket, by Ken Connor; 1/20/06
NY Times, Tripping Up on Trips: Judges Love
Junkets as Much as Tom Delay Does, by
Dorothy Samuels-Editorial Observer; 1/27/06 LA
Times Editorial, Justice and Junkets;
1/28/06 Rocky Mountain News, Scalia ‘Junket’
Defended, by Karen Abbott; 1/30/06
LegalTimes.com, Political Spotlight Shine on
Judicial Ethics; 4/18/06 Washington Post,
Ethics Lapses by Federal Judges Persist, Review
Finds, by Joe Stephens; 4/28/06
CRC Report Says Increased Amount of ‘Junket for
by Tony Mauro; 5/1/06 law.com, Watchdog Group
Singles Out ‘Junketing Judges’, Tony Mauro;
5/3/06 USA Today, How to influence Judges;
5/08/06 Houston Chronical, Area Judge Ranked
4th in free Trips, by Harvey Rice
Juice v. Justice.
3-Part Series by LA Times, titled JUICE V.
JUSTICE by staff writers Michael Goodman and
William C. Rempel.. Part I, 6/8/06 In Las
Vegas, Thy’re Playing With a Stacked Judicial
Deck – Some Judges Routinely Rule in Cases
Involving Friends, Former Clients and Business
Associates – and if Favor of Lawyers Who Fill
their Campaign Coffers; Part II, 6/906
For a Vegas Judge and His Friends, One Good Turn
Led to Another – James Mahan Got His Jobs on the
State and Federal Benches Through connections of
Old Pal George Swarts – Things Turned Out Well
for Swarts Too; and, Part III, 6/10/06
How Some Judges Stay Under the Radar – some
Senior Judges Are Exempt From Some Rules of
Accountability – The Career of 3 Jurists Reflect
The Ethical Questions That Can Result.
Follow up articles re above Las Vegas series by
LA Times: 6/14/06 Series on Las Vegas Judges
renews Calls for Reform; 6/18/06 John L.
Smith: Unflattering Series on Judges Unlikely
to Alter system, but Could Change Players;
6/23/06 Three Las Vegas Judges Face High
Court Review – In Response to Times
Investigation, Nevada’s Justices want the Senior
Jurists to Answer Conflict-Of-Interest and
Favoritism Allegations; 6/25/06 Inquiry
Sought Into Vegas Jurist – The 9th
Circuit Might Already be Planning to Act on
Complaints About Judge James C. Mahan.
Her comments referenced in this piece re the
Kelo v. City of New London, No. 04-108,
decided June 28, 2005, are found in 9/20/05 The
Arizona Republic – azcentral.com, O’Connor
Notes ‘Scary’ Court Decision, by Joe Kamman.