So, we finally get to oral argument, see attached transcript , which kind of captures most of what was said, even if it missed some of the notes I jotted down while it was going on – I guess some sensitive or similar stuff gets redacted in cases against the CIA.

Anyhow, judge says he’ll issue an opinion in a week or so.  A month or so later nothing has been issued, so I decide to file an Amended Complaint, catching up on all the civil rights violations that occurred after the Complaint was filed, and adding some extra defendants to flesh things out.

Well, unbenknownst to me, one of the defendants I named for negligence, who was head of the DOJ Public Integrity Division at the time, had moved on since then and joined the federal bench, and became a federal district judge.  Just my luck, he’s a federal district judge in the same court I’ve filed suit in.

Defense files an Objection to Amended Complaint that didn’t add much to what they’d already objected – except telling the judge that one of the defendants, a former official at the time of the events, has since then moved to become a judge.  Basically a crude way of telling the judge:  "Plaintiff is suing a former official who is now a judge - you know, kinda like you, judge."

"And not just any judge - a judge in the same court as you.  Matter of fact, the two of you were both nominated by President Bush at the same time, went through the Senate vetting process together as part of the same judicial nomination package (your families were even together that day, remember?), and were confirmed together by the Senate as part of that package."

"That's the judge (remember him now?) that Plaintiff is suing.  You know... in that Complaint that you're supposed to decide on, judge."

In theory, a defendant's identity or status shouldn't make a difference - we're all supposed to be equal before the law and all.  In reality though, I guess there really is a difference between the law that applies to the rest of us Joe Schmoes and those who are connected and powerful - or at least those who are the colleagues of, and who went through the judicial nomination and approval process together with the deciding judge.

In theory.

About 24 hours after the government filed its objection, with the “psst, one of the defendants is the judge/ buddy you went through the judicial nomination and confirmation process together with,” the Complaint was dismissed, without even an opportunity for me to respond, in an Opinion that pretty much spelled “tough.”

Among other things, the District Court's opinion said the allegations in the Complaint were "vague."  Here's a guy saying: "those defendant officials, during the course of an application for a government job, abused their power by trying to extort money and sexual favors from me as a prerequisite for employment or under the threat of adverse official action, and when I said 'no' they abused their power some more by engaging in illegal retaliation, interfered with my livelihood and went so far as to threaten my life unless I agreed to shut up." 

Calling that "vague," I think, is the judicial equivalent of sticking your fingers in your ears and going "la, la, la... I can't HEAR YOU!" 

It's an effective way to sidestep or end an argument, but perhaps not the way it's supposed to be done.

Well, I personally don’t think the fact that a defendant in a lawsuit has become a judge since the time of wrongdoing is a good enough reason to deprive those who’ve been wronged of legal redress.  It’s awkward, true, but that whole “equality of law” stuff should override any concerns about potentially embarrassing the prominent and connected.  And I also thought it was kind of unseemly and irrelevant for the government defendants to even bring out and get some play from the judge based on a defendant’s position with the equivalent of “hey, judge, this lawsuit now involves a defendant who since the events described in the lawsuit has become a federal judge – like you.  And in the same court as you.  Hell, y’all were both appointed by this administration and got confirmed at roughly the same time.”

So I filed a Notice of Appeal with a summary of the issues I think the lower court got wrong, and went ahead and Appealed (pdf and lower court records exhibits A, B, C, D & E).  Government filed its Objections, and I filed a Reply (pdf). spelling out what I think is wrong with the lower court’s decision.  After oral arguments were tentatively scheduled a couple times, the latest news is that the appeal was Assigned on the Papers Without Oral Arguments, so that’s where things stand now.

An interesting aside about the former-DOJ-official-now-judge-defendant: when I filed the Amended Complaint naming him as a defendant, he was  the front runner for the Third Circuit Court of Appeals’ seat that had been vacated by US Supreme Court Justice Samuel Alito.  Soon after I filed the Appeal Complaint, his name was withdrawn from consideration for that appellate judgeship.  There was some back and forth speculation in legal circles about that “sudden” and “mysterious” withdrawal, but it eventually died off.

Don’t know if it had anything to do with my Amended Complaint, or more to the point the Appeal brief and Reply brief highlighting the disparate treatment the Complaint got on account of his being a judge.  If so, it's tragic because he was a minor defendant, and in cutting judicial corners to help his colleague/ buddy, the deciding judge basically ended up shafting him.  Or it could’ve been pure coincidence. 

Then again, part of the Senate vetting process for that Third Circuit seat would’ve involved answering some uncomfortable questions starting off with benign ones along the lines of "list any litigation in which you are or were involved," which could've been followed by Senate investigative staffers trying to find out more about his role in stuff that this administration doesn't want anybody looking at, so who knows. 

Anyhow, if the litigation had that kind of impact on the nomination/ vetting process for the Third Circuit seat, it's luck that it wasn't filed a year earlier - same considerations would've applied to the nomination and vetting process for the District Court slot.

Be poetic if one of the unintended consequences of this odd saga is that it kept a Bush II appointee off the federal appellate bench.  I don't believe in karma or destiny or what have you, but if I did this would qualify as karmic.  What are the odds of getting wronged by a federal official years ago, then moving on four states away up I-95 and the Jersey Turnpike, where that official follows soon thereafter as a judicial appointee of the administration that wronged you, then filing a lawsuit that doesn't initially name him, in the same courthouse where he's now a sitting judge, then after that Complaint sits around for a year or so, adding him on as a defendant in an Amended Complaint just as he's getting vetted for an Appellate judgeship, and then soon as his role becomes significant in the appeal, his name almost immediately gets withdrawn from that nomination?

Odds are the timing is just a coincidence, but if not, talk about some serious karma.

Anyhow, that's a snapshot of the judicial process in the Bush years - if somebody goes to court with a scandal that could prove harmful to Bush officials, why you just yank that case from whichever judge was randomly assigned to handle it (maybe on the theory that a Clinton appointee might have difficulty seeing the "delicate nuances" of imperial presidency that a Bush II appointee would?), Reassign it to the one judge in the courthouse who was not merely a Bush appointee but one who happens to have gone through the judicial nomination and confirmation process as part of a joint package with a defendant in that case, and then just wait for that judge to toss out the case against his colleague/ buddy with an Opinion that doesn't even bother to address the issues presented in the briefs.

And this is taking place against a background in which the complainant is telling the court "listen, even while this case is pending in the courthouse, the defendants are going about breaking and entering into my home, rifling through my litigation papers by way of some not-so-subtle intimidation, and while these briefs are pending before Your Honor, the defendants are so unconcerned by your judicial oversight that they're actually going ahead and putting their signature on documents that, on their face, amount to obstruction of justice tactics that violate clear-cut criminal statutes that prohibit retaliation against or intimidation of parties and witnesses [such as 18 USC 1512(b) & (d) and 18 USC 1513(b)] in litigation."

One of the things about the Bush II crowd is that they've institutionalized and routine-ized back scratching and ethical corner cutting to where it's just business as usual, to be greeted with a Seinfeldian "meh," if at all.

To quote Joseph Welch blowing up on Joe McCarthy during a Senate hearing:  "at long last have you no decency sir?  At long last, have you left no sense of decency?"

McCarthy didn't answer, but if the Bush II crowd did it'd probably be along the lines of "so long as it's kept hushed up, decency can go hang."