f/k/a archives . . . real opinions & real haiku

       If Prof. Vololkh is right about the First Amendment and lawyers (see our prior post), (in)famous divorce lawyer Raoul Felder should have made a porno flick, instead of co-authoring the naughty and purportedly hilarious book Schmucks!: Our Favorite Fakes, Frauds, Lowlifes, Liars, the Armed and Dangerous, and Good Guys Gone Bad with the notoriously caustic and crude standup comic Jackie Mason (video weblog).   And, if you need proof that the law profession’s Dignity Police are in charge in New York State, this episode should be Exhibit A (see our post the bar’s undignified self-importance). 

 Felder is currently the Chair of the NY Commission on Judicial Conduct, but he won’t be for long, if his ten colleagues on the Commission and Governor Eliot Spitzer have their way.  Schmucks! was released the last week of March.  On Friday, the CJC — without any input from their Chair — met and unanimously voted to censure Felder, in a Statement of No Confidence (April 13, 2007; the accompanying press release identifies and notes who appointed each of the commission members; via Room8).  Here are excerpts from the No Confidence statement (emphases added):

1. The members of the New York State Commission on Judicial Conduct hereby express a loss of confidence in the judgment and leadership of the Chair of the Commission, Raoul Felder.
2. As the agency of government charged with the serious and sensitive task of reviewing allegations of misconduct against judges … the Commission must at all times be and appear to be an example of probity and discretion, as well as independence, integrity and impartiality – the very qualities we require of our judiciary.
3. We expect all members of the Commission, and especially the Chair, to forgo certain rights and privileges in order to avoid impropriety and the appearance of impropriety and to maintain the trust and confidence of the public and the judiciary. The Chair is not free, for example to express publicly, even in his private capacity, opinions that might reasonably cast doubt on the Chair’s or Commission’s ability to be and appear fair and impartial, or opinions that undermine the integrity and dignity of the office of Chair.

The Commission asserts that its “loss of confidence in Mr. Felder’s judgment is rooted in a book he recently co-authored,” and goes on to say:

Much of the material in this book, and the work as a whole, undermine the appearance of impartiality, and the dignity and probity that is required of the Commission and its Chair. Although the book purports to be a work of humor, much of it is crude, biased, vulgar and otherwise demeaning. . . .
• The book repeatedly invokes racial, ethnic and religious invective. …
• The book asserts that “anytime you hear the word ‘allegedly,’ you can bet it’s true.”…
• The book claims that “nothing in our country is more insidious than affirmative action.” …

The last words of the Statement are “We are exploring our options in terms of removing him as Chair.”  According to the New York Post, so is our politically-correct NY Governor Eliot Spitzer.  “GOV TO RAOUL: QUIT – OR ELSE,” by Inside Albany columnist Fred Dicker, April 16, 2007. (and see today’s AP coverage) The Post says that Spitzer “called on celebrity lawyer Raoul Felder to quit the state Commission on Judicial Conduct or face possible ouster [in a disciplinary procedure] because of ‘inappropriate’ comments in his new book, “Schmucks.”  Spitzer, “a former attorney general and a Harvard Law graduate,” told the Post: 

“The comments that are in the book are inappropriate and simply wrong for one who sits, as Mr. Felder does, in a position as chair of a commission that judges the behavior of judges.”

 “It is one matter for him to say, ‘I have First Amendment rights,’ as, of course, he does. But it is a totally different matter for him to make comments that would be highly inappropriate for members of the bench and for him to sit and pass judgment on our judges, who made similar comments that would be appropriately criticized and lead to sanctions.”

Columnist Dicker has this to say about Schmucks!:

“A review of the new book by The Post found many crude and insulting references to prominent people on the liberal or left side of the political spectrum – including Sen. Hillary Rodham Clinton, former President Bill Clinton, and the Rev. Al Sharpton – deemed “schmucks” by the generally right-of-center authors.

“While there were several “ethnic” references, including several gibes at Felder’s and Mason’s fellow Jews, there were no explicit examples of racial insults and several statements in favor of racial equality.”

A New York Times article on Saturday also described the book, noting that it includes a chapter on the NYT (calling it “unfit to print”), for example:

Mr. Felder and Mr. Mason, longtime friends, appear as cartoon superheroes on the cover of the book…

They take shots at a number of public figures and ethnic groups. Barbra Streisand is dubbed “Mentl” and the speaker of the House, Nancy Pelosi, is “Botox-addicted.” Chapters in the book take on Tom Cruise and France and have titles like “Al Sharpton, Praise the Lard.” . . .

The tone of the book is a familiar one to fans of Mr. Mason, who has been condemned by various groups in the past for jokes that veered over racially sensitive lines. . . .  

Referring to Saudi Arabia, the authors write, “We never cared much for men who wear bedsheets as clothing. Like the Ku Klux Klan. And the Saudis.”

Felder was quoted last Friday by SILive/AP:

“Loosen up guys, this is humor,” Felder said Friday. “This is America. This can’t happen here.”

“I would feel better as an American if they could point to something, some official act I have done, where I haven’t acted appropriately or somebody feels their rights were infringed by anything I’ve done. And they can’t do that.” 

Just when I was about to wind up this posting, I hit Google News again and see that the Felder story is getting a lot more coverage today. According to the New York Sun, “Floyd Abrams may stand by Raoul Felder’s Side,” April 17, 2007.   The NY Law Journal/Law.com posted “N.Y. Judicial Conduct Commission Throws the Book at Chairman-Author.”  The NYLJ article notes that “Felder is known for his ability to come up with a provocative phrase” and that “Felder has teamed up with Mason in a number of ventures, ” including a weekly TV show for the Public Broadcasting Service, “Crossing the Line,” and a show on BBC called “The Mason-Felder Report.”   The NYPost‘s Fred Dicker takes up the subject again today, in a piece headlined “Raoul Defiant: Refuses Gov’s demand to quit.”

Today’s NYPost article makes it clear that Felder will continue the First Amendment theme:

“I supported Gov. Spitzer. I still support him. He understands that I cannot step down for this reason, and we’ll battle it out,” Felder told WROW-AM in Albany.

Felder called the fight a “First Amendment question” and predicted that if the governor seeks his ouster – as Spitzer said was likely – the case will wind up before the U.S. Supreme Court.   

“They’ve made it impossible for me to step down,” said Felder, adding that he had been considering resigning in late August before the book flap developed.

“The next time they may not like something that next guy likes. It’s scary, so I can’t do it,” Felder continued.

According to a Press Release by Dean G. Yuzek, Attorney for Hon. Marian R. Shelton (April 16, 2007), it was a letter on April 12, 2007 by the embattled Judge Shelton that spurred the No Confidence vote by the Commission.  The press release makes some interesting points, including (emphasis added):

  “Although Chairman Felder’s “Schmucks” book has been out since March 27, similar material from Mr. Felder (“crude, biased, vulgar and otherwise demeaning” in the Commission’s phrasing) appears as well in his earlier books, about which the Commissioners knew or should have known. That the Commission acted as it did only under Judge Shelton’s prodding (and has not acknowledged that her letter caused it to address the issue) is hypocritical. Indeed, the vote of no confidence begs the question of where Mr. Felder’s fellow Commissioners were before last Friday.

“A small caveat is in order: although as a first step towards Mr. Felder’s possible removal the other members’ vote is important, it should be a matter of concern that Mr. Felder was hardly provided with due process by his Commission colleagues. Within four hours of receipt of Judge Shelton’s letter- and the knowledge that it was in the hands of the press – he had been tried and his fate sealed. One would have thought that a panel which counts among its members eminent civil liberties champions would have given him a meaningful opportunity to defend himself. However, because of her belief that Mr. Felder leads a group that thinks it is appropriate to trample on a judge’s due process rights and is willing to impose “career capital punishment” using the lowest evidentiary standard, Judge Shelton’s sympathy is muted.”

Like Judge Shelton, I also wonder how it can be that the Commission just realized that Rauol Felder says controversial and crude things (and pals around personally and professionally with Jackie Mason)?   Ten years ago, Felder wrote the New York Times op/ed piece Two-Fisted Lawyering: “I’m Paid to Be Rude” (July 17, 1997), dissenting to Chief Judge Kaye’s push for a code of civility for New York lawyers (and suggesting that the code was an inept attempt to counter the bad reputation that lawyers received due to the O J Simpson murder case).  Since then, his reputation for controversy and the frequent barbaric barb has certainly not diminished.  Nonetheless, only last year, his colleagues on the Commission selected him as their Chair, after serving with him since 2003.  (“Lawyer Attacked for Book His Panel Deems Offensive,” New York Times, April 14, 2007)  

            What has changed so much that the Commission rushed to condemn Felder publicly, without giving him a chance to reply?   Well, the weekend New York Times article notes that the No Confidence vote “came amid a heated national debate over the racially and sexually charged language used by Don Imus to describe the Rutgers University women’s basketball team. . . . The commission said its decision was not related to that controversy.”    New York’s legal Dignity Police (and political correctness watchdogs) need to be curbed.  I’m looking forward to Felder’s First Amendment fight [and to the June trial in federal court on the new NY advertising rules; via legalblogwatch] 

    update (April 18, 2007): Prof. Euguene Volokh posted thoughtfully today in a piece title “Should Condemning Affirmative Action Disqualify You from Membership on a State Judicial Conduct Commission?”  After noting “I do not want to argue that the Commission’s action is unconstitutional,” Eugene states:  “But I’m quite troubled by the theory that criticism of affirmative action — even somewhat overstated criticism (I’m sure something in our country is more insidious than affirmative action) — should be seen as casting doubt on the person’s fitness to serve on a judicial conduct commission, or as the judicial conduct commission’s chair.” He gives examples of other programs that a public official might disagree with and argues:

“We assume that people who disapprove of programs are nonetheless able to fairly decide factual and legal questions raised by people who happen to be beneficiaries of the programs; otherwise, nearly no-one would be eligible for judicial or quasi-judicial office. Why would affirmative action be a sacred cow to which this assumption doesn’t apply?”

Prof. V concludes: “I speak here of the Commission’s statement and its reasons for the statement; perhaps the book’s discussion of affirmative action deserves censure, but I’m relying on the Commission’s defense of its own position, which strikes me as quite unpersuasive.”   Meanwhile see Fred Dicker’s JACKIE [Mason] RIPS BOOK-CRITIC GOVERNOR, NY Post (April 18, 2007) and N.Y. Governor Criticizes Judicial Conduct Commission Chairman Over Humor Book, NYLJ/Law.com (April 18, 2007). 

    After all this controversy, I need a few haiku from a New York haijin who’s judgment I always trust, Tom Clausen:

marking
the cat’s grave
our dog

 

after speaking importantly    
  she quickly resumes
  sucking her thumb

 

playing a childs game
    I learn all
     his rules

the load tied down —
her painted toe nails
on the dashboard

………………………….. by Tom Clausen 
“marking” – The Heron’s Nest (March 2007)
“after” & “playing” from Homework (2000); “the load” Upstate Dim Sum (2003/II)