The Thom Seymour Paine Foundation

"Can I jump out of my own skin? No. No human being can."

nemo judex in causa sua

And that, my friends, is the problem with current recusal law and its implementation. It's left to a judge to decide if he's biased. But it is a maxim of every good system of law that a man shall not be judge in his own cause. Not only does this presume an honest judge (a biased judge will simply lie about his bias), as Justice Breyer said, not even he can objectively evaluate his own motives. If he can't, who can?

Interestingly, the Justice whose failure to recuse spawned this committee wrote, "what matters is not the reality of bias or prejudice but its appearance. Quite simply and quite universally, recusal [i]s required whenever 'impartiality might reasonably be questioned.'" Questioned by whom? Even this man cannot see his own sin, accepting a trip from a defendant at trial.

No, the only true test for the appearance of bias in a judge is NOT to ask the judge (or his "collegial" friends) if HE sees his bias, but to ask the public if WE see bias. "Justice should not only be done, but should manifestly and undoubtedly be seen to be done." The only way for the public to have confidence in the judiciary is to have citizen oversight. Let a few random citizens from across the country decide if they see bias or the appearance of bias in a judge when the issue is raised.

The D.C. court of appeals essentially found Judge Jackson "guilty" of judicial misconduct when it remanded the Microsoft case to a different trial judge. The court said, "... we vacate the Final Judgment on remedies, because the trial judge engaged in impermissible ex parte contacts by holding secret interviews with members of the media and made numerous offensive comments about Microsoft officials in public statements outside of the courtroom, giving rise to an appearance of partiality. Although we find no evidence of actual bias {HA!}, we hold that the actions of the trial judge seriously tainted the proceedings before the District Court and called into question the integrity of the judicial process.

"All indications are that the District Judge violated each of these [Canons of the Code of Conduct] by talking about the case with reporters... " Except for criminal misconduct, it doesn't get much worse than this. The court even broached the topic of judicial misconduct complaints. "The Code of Conduct contains no enforcement mechanism. There are, however, remedies extrinsic to the Code. One is an internal disciplinary proceeding, begun with the filing of a complaint with the clerk of the court of appeals pursuant to 28 U.S.C. s 372(c)." And yet, even though a chief judge - or any judge - can initiate such a complaint, apparently, no one did. Not even in this slam dunk case. Does anyone really care about the integrity of the judiciary? Perhaps they thought the press coverage was corrective action and he'd been shamed already?

But after this travesty, even though the court said Mr. Jackson's "violations were deliberate, repeated, egregious, and flagrant," he was named a Judicial Honoree by the Bar Association of D.C. If members of the esteemed profession think breaking the Code of Conduct is a joke, why should the public think different?

Boy, we'll say! (By the way, the poster title comes from Jesus Christ, condemning the judges of His day.) While we strongly disagree on "scientific" and legal grounds with Judge John E. Jones III's ruling outlawing the teaching of Intelligent Design in Kitzmiller v. Dover Area School District — as with murdering the unborn, there's nothing in the Constitution about the "separation of Church and State" — our narrow focus here at the Foundation is on judicial misconduct and biased judges. And what to do about them.

Here we're showing the problem, the foolishness of letting judges decide for themselves if they're biased. (Or even qualified to rule. Judge Jones hasn't a clue what is science and what is not.) Here Judge Jones is so sure he isn't biased (even though he is) that he insists that if you think he's biased, the problem is yours. Here's what he felt compelled to opine in his Conclusion: (ground for appeal?)

Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy. The breathtaking inanity of the Board's decision is evident when considered against the factual backdrop which has now been fully revealed through this trial. The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.

To preserve the separation of church and state mandated (?) by the Establishment Clause of the First Amendment to the United States Constitution, and Art. I, § 3 of the Pennsylvania Constitution, we will enter an order permanently enjoining Defendants from maintaining the ID Policy in any school within the Dover Area School District... (emphasis ours. See Professor Eastman on this fantasy within the judiciary.)

We think the judge doth protest to much. There's a Freudian component to this. He's so confident in his assertion that he's not biased that he has to resort to the logical fallacy called Poisoning the Well. (That no one but an idiot would disagree with me.)

Really, the only difference between Judge Jones and ex-Judge Jackson, who was overturned for judicial misconduct, is that Judge Jones kept his mouth shut and didn't voice his foregone conclusions ahead of time. That he held forgone conclusions is obvious when you read his ruling or listen to him speak. His mind was already made up ahead of time. Of course, we all hold foregone conclusions when it comes to Creation, but those on the Right are generally more diligent about not making up law, twisting it, nor calling opponents "inane." They realize they will have to give account someday to their Creator. (Those on the Left will also have to give account, but they won't acknowledge that.)

As you might imagine, Judge Jones is currently a hero in legal (liberal) societies, making the rounds, as in this C-SPAN presentation, touting the Liberal manta "judicial independence" which is always invoked when a judge contrives a bogus legal decision, especially one that goes against the will of the people, voiced through their elected representatives. We hope the students can see from his written ruling as well as his speech that Judge Jones is blind to his own bias. It's easy to see because activist judges are intolerant of anyone who calls him an activist judge!