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Judge Stewart's New Book, "Seven Miracles That Saved America" - Updated (cases, recusal info)
Friday, February 19 2010 @ 12:50 PM EST

Getting to know Judge Ted Stewart just became a little easier, because he and his brother Chris have written a book. Deseret News interviewed them for an article about the book, "Seven Miracles That Saved America: Why They Matter and Why We Should Have Hope," published by Shadow Mountain, which you can obtain here for $27.95). The article has a picture of Judge Stewart, and the second link takes you to a video of the brothers talking about the book.

The book focuses on seven incidents in the history of the United States, with the following theme:
The Stewarts see in these particular events not the random whims of fate, however, but evidence of divine blessing, proof of divine providence at work, a hopeful conviction that God does indeed care about America. They see miracles.

They are not alone in that perception. "The people who were living these things all had doubts about how they would turn out," says Ted. "But what's remarkable is that every one of them, to some degree or another, acknowledged the help of Divine Providence."...

As they began to think about a book and as they started researching stories, the Stewarts realized another very important thing: America has a unique role. "It is the source of democracy in the world. We believe that is important to God, and that is why he protects us," Ted says. "And if that is true, we have every reason to have hope for the future."

The article also gives a little background on each:
The brothers bring diverse backgrounds to the task. Chris was a record-setting Air Force pilot (he holds the record for the fastest nonstop flight around the world) before he retired to become president and CEO of The Shipley Group, a nationally recognized consulting and training company, as well as a best-selling author. His techno-military thrillers have been released in multiple languages in seven countries, and he's published a number of novels for Shadow Mountain.

Ted was appointed as a U.S. District judge in 1999 by President Bill Clinton. Before that, he served as chief of staff to Gov. Mike Leavitt, as a member and chairman of the Public Service Commission and as chief of staff to Rep. Jim Hansen, R-Utah. He has also taught university courses in law, the Constitution, the Supreme Court and public policy.

So we can now get a bit of the measure of the man. It is true he was appointed by Clinton, but it was Senator Orrin Hatch who fought for him in what was at the time a controversial appointment.

This is to help us understand his world view, consistent with prior articles on other judges, including Judge Dale Kimball, who was the original judge on the case. Here's a bit more background on Judge Stewart, from an earlier article, for any who are new here. This Salt Lake Tribune article called Stewart "a magnet for reversals":

He isn't unique; the Denver-based 10th Circuit second-guesses federal judges in several states, including Utah. In 2001, according to a Salt Lake Tribune review, Utah's federal judges were reversed 14 times out of 115 cases. Over five years, Utah judges were overturned 18 percent of the time.

But when Stewart has been reversed, the cases are outrageous. The outcome seems more obvious, even to a nonlawyer. And his decisions look like evidence of either a personal bias or blatant disregard for the Constitution and legal precedent.

Four years ago, the appeals court forced Stewart to reverse himself and declare Salt Lake City's Main Street Plaza free speech rules unconstitutional. The limits, a chastened Stewart wrote, were "facially invalid under the free speech clause of the First Amendment." Pretty basic stuff there. But upholding the Constitution in the first place would have required Stewart to go against city leaders and his faith.

I include that only for a complete picture. I don't endorse or know enough about that case to endorse or not that point of view, and what I notice is that when reversed by the appeals court, he accepted their decision. That's how the system works, and he showed respect for the system. And others in the article say he is fair:
One attorney who has argued intellectual property and antitrust cases before Stewart says he's "no-nonsense, efficient, and, in my view, fair."

But at the same time, if that attorney were trying a case for the American Civil Liberties Union and could pick the judge, "I would never pick Stewart. I still suspect that with his philosophy and judicial temperament, I'm not going to get any breaks," the attorney says.

This is all part of the whole story, some background color. Lawyers, when their case is assigned to a particular judge, usually do some research to see what he or she is like. And we are doing the same. It does help to understand rulings better if you know a person's world view.

I've seen some comments about "the fix is in" that I'd like to respond to. A judge in a jury trial, which is what this is, can't fix the outcome. At worst he can make sure one side gets no breaks. But the jury is on its own, able to decide contrary to a judge's wishes or inclinations. That is one beauty of the US legal system, in my view, and it showed true foresight, and insight, on the part of those who created the system so many years ago that they designed a system where the common man, not those with positions of power, gets to decide the outcome. And as you saw in the article on reversals, there is also a fail-safe provision of appeals when something seems to go egregiously wrong. I'd rather go before a jury than a judge any day. Stay tuned, and we'll see one in action soon.

Please remember our comments policy precludes any comments on politics or religion. Also any ad hominem attacks. Our goal here is, always has been, and always will be civil speech.

And just for fun, since we haven't heard from Darl McBride in a while, here he is telling stories about Ray Noorda. It's all part of the story of this litigation, the human side. You'll also find on that Rocky Mountain Voices page others remembering Noorda, including Ty Mattingly, David Bradford, Ransom Love, Ron Heinz, now heading up Canopy Group after Ralph Yarro's forced departure, and Drew Major.

Update: Here are the three cases mentioned in the SLC article where Judge Stewart was reversed on appeal, found for us by an anonymous reader, all PDFs:

Thank you for finding these for us, anonymous contributor. One more example of why I will never block anonymous contributions.

Update 2: Two more:

The last one will interest you, because it was affirming Judge Stewart's refusal to recuse himself in the case. It also tells us that in that case, where he was asked to provide information about his connection to his church, he said that he has no leadership position. It's really hard to get a judge off a case, as you will see. Or as the appeals court wrote:
Disqualification under 28 U.S.C. Section 144 places a substantial burden on the moving party to demonstrate that the judge is not impartial, not a burden on the judge to prove that he is impartial. United States v. Burger, 964 F2d 1065, 1070 (10th Cir. 1992). 28 U.S.C. Section 455(a) provides no authority either. Under Section 455(c), the presiding judge must 'inform himself about his personal and fiduciary financial interests.' (emphasis added). That duty continues throughout the litigation... The statute thus places the jude under a self-enforcing obligation to recuse himself where the proper legal grounds exist....

A judge must make disclosure on the record of circumstances that may give rise to a reasonable question about his impartiality.... Section 455 contains an objective standard: disqualification is appropriate only where the reasonable person, were he to know all the circumstances, would harbor doubts about the judge's impartiality.... There must be a reasonable factual basis to question the judge's impartiality.

Thinking that a judge's mindset doesn't match your own is not a reason, in other words. If someone found out that the judge held stock in SCO Group, then we might have a conversation. But I'm sure if that were the case, he'd have recused himself immediately, and he didn't, so we can rule that out. This issue of judicial bias is kind of a hot topic at the moment, although more about judges at the state level because they are voted into office, in part because... how to put it... because some haven't been as sensitive to the need for recusal as carefully as critics thought they should be.

But the problem is, in the US currently anyway, there are such political divisions, with such animosity, that there are those willing to try to control events by controlling who gets to be a judge. Nothing new about that, but it's become very difficult to protect judges from that animosity and all the agendas. It's a huge problem, one Sandra Day O'Connor has spoken about often since leaving the U.S. Supreme Court to care for her husband. She is opposed to electing state judges:

According to the Seattle Times, OíConnor believes Washington and other states need to completely overhaul the way that state and local judges are selected for the bench. Because lower-level judges are elected they are not immune from potentially being swayed by campaign contributions, said OíConnor on Monday. In Washington state, as in about two dozen others, judicial positions from state Supreme Court justice to municipal judge are elected positions.

OíConnor said the threat to judicial independence comes largely from corporations, attorneys and other interest groups that donate to campaigns with the hope of obtaining favorable rulings from the judge after the election.

The conference at Seattle U. started with a nearly two-hour discussion centered on the U.S. Supreme Courtís June decision in Caperton v. Massey Coal, which held that elected judges must step aside when large campaign contributions by interested parties create appearance of bias.

However, federal judges are not voted into office. They are appointed. What's the difference you ask? Politics surely is in that picture too. Yes, but the appointment is for life. Once in, you are in to stay, and that really makes federal judges less vulnerable to outside pressures:
OíConnor struck a historical note on Monday, stating that the nationís founders believed it crucially important that federal judges have the freedom to make unpopular decisions without worrying about poll numbers. It was only after President Jacksonís election in 1828 that he persuaded states to begin adopting elections for judges, she said.
A voting system does involve popularity, after all. So the system was designed to protect judges from the need to appeal to voters. She'd like to get away from voting on the state level too. If you read up on the facts in the Caperton v. Massey Coal case, you'll see why. Others would like to take away from judges the authority to decide for themselves whether or not to recuse themselves:
A leading proposal in Congress would require that recusal motions be heard before a second judge, which is similar to what has been adopted by at least 21 states. Another idea, now used in at least 19 states, would give each side a "strike" mandating a judge step aside when there are questions about impartiality.
I don't quite see how that last would work, in that only one side is likely to feel that bias is a bad thing in the particular case. The beneficiary won't be complaining.

O'Connor says the US is the only country that votes in judges, saying it wasn't the original system, and that the basic concern is a fair and even playing field. I'll let her speak for herself:

"The basic precept of equal justice under the law requires that neither side of the dispute has an unfair advantage," Justice O'Connor said. "I think you might be concerned if you were in court litigating some issue in front of a judge who had been given a bunch of money by your opponent."

Alan Page, a National Football League Hall of Famer and Minnesota State Supreme Court Justice, compared a lack of judicial independence to how football fans would feel if, before their favorite team took the field, they learned that the officials for the game had a stated preference for seeing one side or the other win. "Or if the referees had to campaign for their jobs while being funded by the opposing team -- that's what we're facing today," said O'Connor.

I guess you can tell from how I am describing it that I believe that judges must be isolated from political infighting to the degree possible. Although you don't want judges who can be bought and sold, obviously, judicial independence is foundational to the US system, and it's a crying shame to see politics take a position front and center stage. It is actually, in my opinion, a good thing that judges are free from frequent or easy challenges to their impartiality, therefore. I'd be worried about a system where recusal efforts more or less became a substitute for voting. I want judges to think about the law and the Constitition, without worrying about pleasing those with political agendas and a whole lot of money for FUD campaigns or even for running TV stations and other media outlets, so as to work up people into a frenzy over an issue without grounding them with enough information to make more than a surface, emotional decision. Any system has to be sturdy enough to deal with those gaming the system, because there will always be some trying.

Judges make decisions every day that somebody disagrees with, and yet there has to be some way to settle disputes with finality and with both sides feeling they at least got a fair hearing, even if they don't like the outcome. Sometimes what is good in the short run for a particular case is a disaster in the long term for the system overall, and you do need to consider the complete picture. As always with humans, it's hard to get the balance just right, and law is a human process, made up of imperfect people, trying to point to true North, but never quite making it. Here's where you'll find the ABA Model Code of Judicial Conduct, February 2007 version, which is about as close to true North as we have at the moment.


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