Maintaining beliefs despite reality

I've deconstructed an essay by Kevin Blier regarding the retention of a Supreme Court justice up in Vermont. It's a great example of how disinformation is spread, and how facts must be made up to make his analysis comport with reality. My comments are in red. Here it is:

JUSTICE DOOLEY'S RETENTION RAISES SERIOUS QUESTIONS

by Kevin W. Blier in "Special Real Vermont News" 2-1-05

With the Vermont General Assembly opening this month, Vermont legislators will be taking up the task of voting whether or not to retain judges throughout Vermont's judiciary. Vermont's Constitution requires that every six years a process called "Review and Retention" is faithfully executed by the Vermont Legislature. The Joint Committee on Judicial Retention will review the records of Vermont's Supreme Court Justices, Superior Court Judges, and District Court Judges. The members then vote on whether the jurists in question have faithfully executed their Constitutional duties and deserve another six-year term. Six years ago, serious questions were raised about Justice John Dooley's conduct as a Justice on Vermont's Supreme Court.

Not “serious questions”, just complaints about the fact that the Court didn’t decide they way they wanted it to.

The legislature in a tight vote, at least by "Review and Retention" standards, voted to retain Justice Dooley.

Tight “by ‘Review and Retention’ standards” perhaps, but still a lopsided vote to retain.

But questions about Justice Dooley's record linger and new ones have come up. Given the small number of lawyers in the legislature, many members will vote based on the recommendation of fellow members who are lawyers but they will remain uninformed on the real situation.

Pity the poor non-lawyer legislators, they can’t think for themselves, unable to become “informed” in spite of the continued braying by the Dooley-bashers.

Constitutional questions require an honest, independent assessment by those trained in the law. Many members may never hear an "independent" assessment of the legal questions at hand, especially if a member giving the explanation favored the eventual outcome of particular decisions. This situation calls into question the validity and integrity of the process itself. For example, in the Brigham decision, which was the Supreme Court decision that declared the financing of education by the local property tax unconstitutional, the Supreme Court clearly overreached. However, overreaching by an entire court may not be grounds to deny any one Justice retention.

So here we supposedly have the Legislature being deceived by a biased member, helpless and unable to realize it, so the “process itself” is questioned. The statement that the Court “clearly overreached” in the Brigham decision is an absurd legal conclusion. If either of these assertions were true, there exist any number of recognized legal remedies which would be seized upon immediately, by legions of right-wing lawyers, if the possibility of a non-frivolous case existed. The last statement, that “overreaching by an entire court may not be grounds to deny any one Justice retention” is just legal sounding gobbledygook. And just what would constitute an "independent assessment"; pray, tell.

But a case for recusal may. Given Justice Dooley's long-standing activism in the Kunin Administration as the outspoken advocate for a principle called "equalization" in education financing, a principle which mirrors the outcome of the Brigham decision.

We’ll skip the grammatical errors here.

Justice Dooley had a professional responsibility to recuse himself from a case in which there is clear evidence of a conflict from his years of advocacy. And while his advocacy may not be a problem,
(wait - didn't you just say they were?)
questions about his ability to be independent, fair, and impartial, in a matter he so clearly had a personal passion for, is clearly at issue. Justice Dooley should have recused himself from deciding in the Brigham decision because of possible violations of Canon 3 of the Vermont Code of Judicial Conduct. He did not.

Once again, this is legal sounding nonsense, showing no understanding of the obligations surrounding recusal. Under this logic, an attorney who once worked for the Defender General - and later became a judge - would have to recuse herself or himself from every criminal case to come before the court.

In the Baker decision, Justice Dooley's failure as a jurist takes a different tone. Completely overlooked is Justice Dooley's concurring opinion, but what legislators should be focused on are Justice Dooley's reliance on unsettled case law and his deliberate misapplication of the law.

Here we are again with the Legislature “completely” overlooking Dooley’s concurrence, combined with his “reliance on unsettled case law and his "deliberate misapplication of the law.” We are once again confronted with an evildoer and a helpless, passive Legislature. And more grammatical errors.

A closer examination of Justice Dooley's concurrence in Baker shows a deeply troubled jurist sure of the result he agreed with, but with the problem of finding the right wording for the result he desired. His disagreement with the majority on the "reasoning" caused Justice Dooley to search for a different legal standard. So what does Justice Dooley do? He bases his conclusions on the premise of two legal principles: "Strict Scrutiny" and "Suspect Class." Since Justice Dooley concluded that gays and lesbians were a "suspect class," (which has never been established under Vermont law) Justice Dooley relied on unsettled case law (Tanner v. Oregon Health), based on a misapplied standard of an Oregon Supreme Court decision (Hewitt v. State Accident Ins.) as the basis for his decision, because he thought the arguments were "more compelling."

Now the deceiving evildoer is also ”deeply troubled”, another conclusion by an arm-chair psychiatrist. The author says the “suspect class” was never established under Vermont law. The Supreme Court establishes case law in every decision it makes; that’s it’s purpose. Who else is better suited, even obligated, to determine what constitutes a "suspect class" ? Blier then asserts that the Tanner case is “unsettled”. Every case ever decided is “unsettled”, because it can always be overturned or modified, in theory at least. To say a case unsettled is pretty meaningless. The author then proffers another baseless legal conclusion, that of the “misapplied standard”, and once more, he’s just bluffing.

But don't take my word for it. Here was Chief Justice Amestoy's assessment of Justice Dooley's use of the Tanner and Hewitt cases: "The concurrence [Dooley’s] suggests He witt… should be relied upon to supply the missing Vermont jurisprudence of suspect class criteria. Yet, the Oregon Court of Appeals found it necessary to abandon the immutable personal-characteristic criterion of Hewitt in order to find that homosexuals were a suspect class."
Justice Amestoy goes on to decry the use of a new standard called "adverse stereotyping," which is the standard Justice Dooley chose. Justice Amestoy diplomatically characterizes the standard as "less than exacting," more than likely because words like "foolish" and "crazy" would have been inappropriate in a court decision.

Regardless of how Justice Amestoy characterized Justice Dooley’s opinion, the decision was unanimous. The author forgets how Justice Amestoy was vilified for his participation in the decision, one looney commentator even suggesting that Justice Amestoy had a hidden agenda to promote equal rights for homosexuals because he went to school in San Francisco! Now that Justice Amestoy is at Harvard, and beyond his critics reach, they can carefully parse his opinions for signs of disagreement, and even supply wording they would’ve preferred (i.e., “foolish” and “crazy”).

However, the case law Dooley used to base his decision on is now settled…by an Oregon Constitutional Amendment. Justice Dooley took a chance, hoping nobody would notice.

Back to the deceiving evildoer, hoping “nobody would notice” – in perhaps the most keenly anticipated and carefully scrutinized opinion ever handed down by the Court.

The legal principles he based his decision on were repudiated by the people of Oregon through the amendment process, which means the legal principles used have no standing in any jurisdiction.

Hello? This is pure baloney. What Oregon voters do has no bearing on Vermont jurisprudence, except perhaps advisory. Eleven other States passed constitutional amendments banning same-sex partnerships; this has had no effect whatever on Vermont law.

Justice Dooley based his decision, almost entirely, on legal principles with no permanent legal standing. Hard to imagine a legal standard "less than exacting" than one that no longer exists!

On top of that, the legal application was derived from a case where sex discrimination based on gender was applied. However, Baker was not a case of sex discrimination based on gender, which means Justice Dooley misapplied the law, an especially egregious step for a Supreme Court Justice to take. Then there is the question of Justice Dooley's refusal for twelve years to submit to his Oath of Office, which he is constitutionally required to do. His years of refusing to submit to his "official" Oath meant that any of the decisions he was part of were illegal, at least according to the Constitution. But since no constitutional officer responsible for execution of the laws, including past Attorney Generals and Governors, were willing to execute the laws according to their duties, Justice Dooley was allowed to continue in his "official" capacity unhindered.

More preposterous nonsense. Note the employment, once again, of the arrogant, defiant evildoer bullying the spineless authorities. Justice Dooley’s did not “refuse”, his opinions are not “illegal”, and this is a baseless red herring. There is case law holding, in effect, that such a technicality as not signing the oath form (after the oath has been administered and sworn to) is not sufficient to affect jurisdiction. Justice Dooley is a justice de facto, if not de jur.

Why is that a problem? The behavior clearly demonstrates a pattern of abuse and misconduct by Justice Dooley that rather than respecting and abiding by the same rules as everyone else, he was the rules, the law. Clearly he feels his position affords him the luxury of skirting the law and ignoring his sworn constitutional duties, thereby illustrating his defiance of the standards that all officials of Vermont must conform to. His attitude towards the Constitution, the rule of law, fellow constitutional officers, and his fellow citizens is one of disdain and contempt. He is the epitome of arrogance. How do we know this is his general attitude? In October, Justice Dooley was caught keeping a court file for seven weeks in a case in which he was a litigant, a clear ethics violation. The details of the affair have been well chronicled in newspaper stories, so they won't be covered here.

Once again, we’ll ignore the grammatical errors, and focus on the content. Here the author really warms to his task, unloading his purplest prose: “pattern of abuse and misconduct”, “skirting the law”, “ignoring his…duties” and exhibiting “defiance of standards” and “disdain and contempt”. This hyperbole does nothing except excite contempt of the Court and convince the impressionable that the Legislature is ignorant, deceived and helpless. Were any of this claptrap true, removal from office would have already taken place in short order.

Suffice it to say that Justice Dooley, by keeping the records for as long as he did, has severely jeopardized the integrity of the file, which makes the court records contained in the file all but useless, unless everything in the file can be corroborated through other evidence.

More silly nonsense. Justice Dooley may’ve kept the records longer than he should’ve, but this is, at most, an embarrassment.

This is a very serious allegation and if it turns out to be true, Justice Dooley has put himself in the precarious situation that may open him up to an investigation on whether evidence was tampered with.

Once again, this is simply wrong, even laughable. "...if it turns out to be true..." , "evidence was tampered with..." Why, it sounds just like Perry Mason. Dooley has been cleared of any wrongdoing. Duh.

Can a justice who has put himself in that situation continue to hold the public trust and continue in office? That is a question the legislature must answer this session.

And so they did. The judiciary functions as it is supposed to, with the checks and balances in place from the legislative branch; the Justices were retained.