We had breaking news yesterday about Judge Cannon that truly I think has shaken up the legal community to its core.
See, I told you it was good. Unfortunately, it doesn’t last long. Elizabeth drops us down to earth from the dizzy heights of gleeful anticipation in the very next sentence.And it may not seem all that dramatic to you…
By “you”, she means those of us who are outside the legal community and since I’m one of them, I guess there’s little chance I’m going to be shaken to my core. Bummer. So what is this breaking news? There was a leak to the press of two private telephone calls, the first between Cannon and an unnamed Senior Judge and the second between Cannon and Chief Judge Cecilia M Altonaga, both of which Elizabeth describes as “radically unusual” (the leaks, not the conversations). Personally, I’m beastly careless about the rarity of judicial leaks. But on the emoji scale of enthusiasm, I have to say that I am happy to have it confirmed that it did take place, that someone – two someones – at least stepped up to advise the novice in the office that she lacked the experience for a case of this magnitude by a couple of decades.
My response would have registered higher up the scale if Chief Judge Altonaga had had the authority to override the fickle finger of fate that pointed to Cannon when it came to assigning the case. But she doesn’t.
And while we’re in this particular judicial neighbourhood, I’m taking this opportunity to point out to all and sundry that Chief Justice Roberts doesn’t have that authority on SCOTUS either. His title is administrative, meaning it lacks the CEO-type power to tell recalcitrant Justices to box up their personal belongings and hand in the company laptop on their way out the door. He can’t fire his Associate Justices for any reason and even rebuking them has no effect because they can just ignore him and carry on as before with no consequences. So, everyone should cease thinking of him as some kind of glorified headmaster. He isn’t. He’s a well-paid administrator with a dollop of extra prestige.
Now back to the breaking news that shook the legal community to its core last week. The leak itself was the first part. The second was underling Cannon’s response to the subject of the leak: the recommendation from her boss that she step aside.
Cannon was approached by the Chief Judge and another judge to let a more experienced judge take over; a judge who had not already been burned twice by the Eleventh Circuit for allegedly interfering in the case itself – and Judge Cannon refused.
This is what is causing the legal community to reel in shock: that underling Cannon defied her boss, the Chief Federal Judge of the Southern District of Florida. Andrew Weissman, Glenn Kirschner, Katie Phang, Renato Moriato and many more are stunned by Cannon’s utter disrespect toward the Chief Judge.
And I get that. Cannon’s disrespect does not comport with their long experience or belief in the principles encapsulated in The Code of Conduct for United States Judges which they themselves live by. For a deeper understanding of their outrage, run your eyes over the five Canons contained in The Code:Canon 1: A Judge Should Uphold the Integrity and Independence of the Judiciary Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities Canon 3: A Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently Canon 4: A Judge May Engage in Extrajudicial Activities That are Consistent With the Obligations of Judicial Office Canon 5: A Judge Should Refrain From Political Activity
Attorney Dianne Bass explains:
Federal Judges are chosen by the turn of a wheel, literally. After an individual is indicted or charged with a crime, they are arraigned in the magistrate court. At the arraignment, they enter a plea of not guilty [and] the magistrate judge or his clerk then spin a wheel and a judge is “randomly” selected.
In the case of the tumbler wheels (as pictured above), the magistrate or clerk spins the wheel before unlocking the small door and pulling out one of the sealed envelopes inside. The magistrate then opens the envelope to reveal the name of the judge chosen. The tabletop version is bedecked with the names of all available judges. There are two ways in which this may be used. In modus one, the magistrate judge or their clerk spins the wheel and, when it stops spinning, the name selected is the one under the pointer at the top of the wheel. Glenn Kirschner describes modus two in episode 325 of the Legal Breakdown podcast. He explains that as each judge finishes a case and becomes available for another, their name is added to the next space on the wheel. When a new case comes in,“the wheel is supposed to tick over one click and the next judge who’s up is the one who gets the assignment.”
The Southern District of Florida uses the wheel apparently under the misapprehension that the randomness of a wheel spin is the same as “blind justice”. It can appear to be the same – when the judge’s experience is commensurate with the requirements of the case – but in this particular instance, it most emphatically isn’t. The essential difference between blind justice and blind injustice is the decision made pre-spin as to which names are added to, or removed from the wheel. If every jurist, regardless of their experience, is included in/on the wheel because of availability alone, that invites blind injustice to join the spin. That is how the least experienced judge in the nation can be assigned the most consequential case in US history. And it does not have to be done this way. New York City, for example, has a much smarter and fairer mechanism for assigning jurists. There, cases are identified by type and then assigned at random by a computer (the modern form of the wheel) to a Justice from among those designated by the Administrative Justice to handle cases of that type. In practice, this means that the only names that appear on their computerised wheel for, say, medical malpractice cases, are those Justices who have experience and expertise in this case law. Wow, how radically sensible is that! If only the Southern District of Florida employed common sense in their method of assigning judges, then all the names on the wheel would have had: ♦ the experience of senior status commensurate with the significance of the case ♦ a clean record with the Eleventh Circuit Court of Appeals ♦ an understanding of CIPA (Classified Information Procedures Act) rules ♦ access to an existing SCIF (Sensitive Compartmented Information Facility) which is required for viewing classified material. How did Cannon fare in a match-up with the above criteria at the time of her assignment? ♦ Before her judicial appointment, Cannon had never tried a case in court. As a judge, in just under 3 years on the bench, she’d tried only 4 routine criminal cases over a grand total of 14 trial days. ♦ She was sharply rebuked twice by the Eleventh Circuit for unlawfully interfering in an earlier iteration of this case as the Judge in the failed litigation of the Mar-a-Lago search warrant. ♦ She had exactly zero experience with CIPA* rules. ♦ She sits in Fort Pierce where there was no SCIF; the nearest being in Miami, 128 miles away. But Cannon’s decision to hold onto the case meant that a SCIF had to be built in Fort Pierce to accommodate her. That decision cost taxpayers between $1500 and $1800 per square foot for a building that’s likely to be used one time only. *For an easy-to-understand explanation of what constitutes the CIPA rules and how they pertain to the stolen documents case, listen to the Jack podcast, episode 29 on MSW Media. Everything cringe-worthy, prejudicial, indecorous, exasperating, shocking and disrespectful in this case happened because of that pre-spin decision. This entire clusterf*ck could have been avoided if Aileen Cannon’s name had not been on that wheel. Cases are thrown out of court for lack of standing. She should have been tossed off the wheel for lack of experience. It’s essentially the same principle. Then there’s the stupidity of it. With all the intellectual brilliance, wit and wisdom amassed in the judiciary in Southern Florida, how is it that no one seems to have noticed the one obvious – and, as it turns out, dangerous – flaw in the method used to assign judges to cases? It’s not as though it would require legislation or a SCOTUS ruling to fix it. An injection of common sense would work. So no, I don’t find Cannon’s refusal to step aside shocking. What’s shocking is that her name was included on the wheel for this case, even though everyone from the Chief Judge down to the clerks knew that Cannon was unfit to take it on. Responsibility rests on the shoulders of those who should have foreseen this and remedied it in time but didn’t. We must hope that some good will come of the legal community being shaken to its core and that it will galvanise them into action to prevent future blind injustices from taking place down in Florida or anywhere else in the US. Lady Justice and the American people deserve better. References: For professional expertise and accuracy, material from the following podcasts was used in this article. @ResistanceLive – Host: Elizabeth Cronise McLaughlin Jack – Hosts: Allison Gill and Andy McCabe The Legal Breakdown Hosts: Brian Tyler Cohen and Glenn Kirschner
Every time I see something, and article perhaps, with some sort of blurb on how cannot screwed up yet again, I irrationally hope (and by this time I guess it is irrational to hope) she is being removed from the documents case. Once again my hope is popped like a balloon. At this point, the only headline and/or first paragraph I wish to see is the one stating the 11th removed her from the case. There doesn’t even need to be an explanation, discussion, etc. Just the words The 11th Removed Cannon from the Trump Document Case. Until such a time, if there is such a time, I’d do myself a gigantic favor by skipping any and all articles about the ignorant little twit in the less than fetching black robes.
“Immediately, it is evident – even to those of us outside the legal community – that Cannon’s adherence to these Canons is… selective. There’s no indication as to how she feels about #4 but she’s treating 1-3 & 5 as optional. (Since the Republican Justices on SCOTUS seem to regard all five as optional, perhaps Cannon considers herself in training to join them some day.)”
It should be noted that the Republicon justices on the Supreme Court are not bound by the Code. That’s why all the recent allegations against Alito and Thomas have been prompting the Supreme Court to adopt some real code of ethics that will apply to SCOTUS.
Congress, mainly thanks to the MAGA House, hasn’t done ITS duty in getting SCOTUS to develop a code though Democrats in the Senate have been pressing very strongly. While a lot of idiotic GOPers are trying to pull this “separation of powers” card, the simple fact remains that it’s CONGRESS that creates the court system and funds the court system. If Congress can threaten states to enact laws that the states don’t want by withholding funding, then certainly Congress should be able to withhold funding the Courts (though, unfortunately, the SCOTUS rats would still have to be paid) until SCOTUS gets its act together and either agrees to conform to the current standards that apply to all lower courts or creates a set of standards under which the members have to operate.
If no one is TRULY above the law, then that should apply to the ultimate arbiters of what is legal in the United States.
There is a fat man in a red coat that flies around the world at Christmas bringing toys to all little girls and boys…and there’s EQUAL JUSTICE UNDER LAW! Take your pick. They both are total fantasies invented to make us all feel better about the facts of life. I’ll go with Santa…I’ve already experienced how ‘justice’ works.