might show a certain clustering of the results reached; just as a cook carefully watching the progress of an omelette in the frying pan, after putting in the proper quantity of eggs and other ingredients for each omelette, might be found, if timed by a stop-watch, to have judged several successive omelettes ready to be served in approximately the same number of minutes of cooking, even though he did not watch the clock but watched the skillet during the performance of the cooking process, and exercised discretion and judgment, and did not follow rote or formula, in determining when the proper time had come, in each case, to serve the perfected delicacy.
Accepting to the full extent of its logical consequences the judicial philosophizing candidly and completely avowed in the foregoing discussion, we are constrained to conclude that it does not amount to "personal bias" against the affiant defendant. At most it constitutes permissible "judicial bias" or strongly held views in favor of law enforcement, or the imposition of severe but lawful sentences, which under Knapp and other cases cited supra do not amount to "personal bias" under 28 U.S.C. 144.
Coming then to affiant's second point, that this Court's decisions in draft cases are often reversed, it is clear that this circumstance also fails to demonstrate the existence of any "personal bias" under 28 U.S.C. 144.
If any personal bias at all could be derived from such a circumstance, it would surely be bias against the appellate court judges involved in such reversals, not bias "against him" [the defendant] as required by the statute!
But in truth reversals constitute no ground for bias or ill-will against any one. Reversals are a normal incident ancillary to the appellate process; and it is a settled principle of our system of jurisprudence that every litigant is entitled to at least one appeal as of right.
Appellate courts would be a useless fifth wheel if they merely served as a rubber stamp automatically affirming the court of first instance. The ripe reflection, research, and review contemplated by the appellate process inevitably generates reversals. Trial courts must rule on many difficult points instanter and off the cuff, or shooting from the hip, to vary the figure of speech. Moreover, as stated by a judge now prominent in the public eye, "Any judge who has his eye on the court of appeals and whether he is going to be reversed or not can't be a good judge."
A further refinement with respect to the function of appellate courts deserves consideration. This was elaborated by Judge Shirley Hufstedler,
who drew attention to the fact that appellate courts perform two separate tasks: (1) supervising the application of well-known and established rules of law (such as whether there was enough evidence to go to the jury, or whether a particular exhibit was properly admitted or excluded); and (2) the development of the law as an integral and symmetrical corpus, by adopting innovations harmonious with the body of law as a whole.
Judge Hufstedler's proposal, when combined with suggestions proposed by Judge Louis Rosenberg, points to a possible means of expediting disposition of the caseload of appellate courts. Under the Hufstedler-Rosenberg plan, the panel of the Court of Appeals handling a case involving only the first function might well consist entirely of District Judges, with extensive trial experience and coming from another District than that in which the case was tried. This would liberate the Circuit Judges for the performance of the second (and most important) function.
Now it happens to be true that the second function (of formulating innovations and the development of new law) has proceeded perhaps more extensively in the field of draft cases than in any other branch of the law. Hence it is no cause for surprise or concern if District Court decisions are often reversed because of the rendition of intervening decisions of the Supreme Court or of the Court of Appeals itself.
This Court firmly adheres to the view that new law should be made by appellate courts, not by the trial courts.
And much new law is being constantly elaborated regarding the Selective Service Act. Some such innovations are very persuasive and reasonable;
others appear to be a grotesque tour de force, such as the judicial establishment of a new religion, with Tom Clark as its Prophet.
This fact merits comparison with the achievement of Parliament in its 1870 legislation regarding religious teaching in state schools. Concerning this accomplishment Professor Gilbert Murray says:
There were two or three possible views which might claim to be logical. If Parliament knew what religious doctrine was true, it should have that doctrine taught in the schools . . .. If Parliament did not know what religion was true, it could either abstain from religious teaching altogether . . . or it could allow all sects . . . to inculcate their particular preferences. Parliament did none of these things. It accepted a motion from a private member, Mr. Cowper Temple, authorizing the teaching of Christianity, but ordaining that "no religious catechism or religious formulary distinctive of any particular denomination shall be taught in the schools." Disraeli . . . riddled the clause with hostile criticism. It was unintelligible; it founded, on the spur of the moment, a new religion ; it made the teachers into a new sacerdotal class. Yet, as a matter of fact, the clause expressed the real fundamental wish of the best minds of the nineteenth century, it stood the test of experience, it enabled religious teaching to move as men's aspirations moved, and it did in a rough-and-ready way separate the kernel of religion from the husk of dogmatic theology. Established religions do not cut a very distinguished figure in the history of human thought, but that unconsciously created by Mr. Cowper Temple is perhaps, for practical purposes, about the best there has ever been.
So the list of reversals stressed by defendant fails to persuade us of the existence of any "personal bias" against the affiant.
Both branches of the affidavit being insufficient to establish "personal bias" as required by 28 U.S.C. 144, we are constrained to reject the motion.
It remains only to state per cautelam that no peril to defendant is possible by reason of any ill-will against defendant's counsel by reason of filing the motion to recuse. The statute does not cover that contingency, but fairness to the parties requires that it be dealt with. This Court is firmly of the view that it is the duty of counsel to resort to every proper procedure which he thinks may be helpful or advantageous to the cause of his client (including motions under 28 U.S.C. 144) and no judge should entertain any resentment at being made the target of such a proceeding (although upon perusal of some of the opinions cited supra one gains the impression that some of the judges involved had bristling hackles, if that is the right expression).
The fact is that the Court holds defense counsel in the highest esteem and respect. Indeed, of all the lawyers appearing in this field of practice, there is no one upon whose statements and knowledge concerning the contents and history of the complex and involuted regulations dealing with Selective Service matters the Court would more confidently rely (although of course his conclusions therefrom arguendo have not always been followed by the Court). A very capable presentation of the defendant's case is anticipated, and will receive the most attentive consideration.
Excerpt from transcript in United States v. Zmuda, Cr. No. 68-283 [aff'd in part, 423 F.2d 757, 758-59 (1970)] pp. 4-6, 15-17. [Material in brackets supplied to correct omissions of reporter.]
MR. KERR: Your Honor, I have submitted a memorandum concerning sentencing to your Honor, as well as to the United States Attorney. I have very little to add to that. I mentioned in that, that the purpose of sentencing is often rehabilitation, or to remove from society someone who may be destructive to society. I think these elements of sentencing, to incarcerate, are not present here. It seems to me that there is one other point on sentencing with respect to imprisonment that I should have mentioned; that is the matter of whether or not punishment is applicable in the situation, and with respect to that, I would urgently like to suggest to your Honor, and to all judges who bear the responsibility that you must bear -- it is a difficult one -- to read the new book by Dr. Karl Menninger, called the Crime of Punishment.
THE COURT: I haven't read it. [I have heard of it.]
MR. KERR: What happens to people in our society due to, not failure of the judge, but due to some failures of the prison system; what happens to some people who are in prison.
Briefly, we have asked in our memorandum that this 19-year old young man who is not a destructive person, is not a person who is going to harm any other individual, be given the opportunity of serving alternative service under probation of the court.
MR. SCHUMACHER: The government hasn't filed a reply brief, your Honor, but I'd like to briefly comment on some of the points raised, with the permission of the court.
THE COURT: I first ask Mr. Kerr, I know of no authority that actually excludes the retributive -- what do you call it -- philosophy.
MR. KERR: No, your Honor, we recognize that legally here this morning this is entirely a matter which is in your jurisdiction.
THE COURT: Of course you are familiar with all the various theories, from Beccaria and the Gluecks and so on; actually I think that is more or less philosophical and as a court we have to follow a more pragmatic view.
If I might say, in my view the statute says primarily, expressing the policy of Congress and their policy of the law, that they define a range of maximum and minimum which is like the zone of reasonableness in railroad rates; the rate could be so many cents per hundred pounds or otherwise, and there is a range, and therefore in that respect that general rule would apply to this type of case as well as others, but I look at the maximum as being a violation of a code with the most deliberate premeditated intentions of a professional criminal; if a bank robbery is accompanied by actual killing or violence that would be up at the top, whereas if somebody sells a jug of good quality moonshine at a reasonable price we are dealing at the other end of the scale, so that in any case the object of the court is to place the particular defendant in the proper place of the spectrum as prescribed by the statute.
MR. KERR: If I may take the liberty of saying it, I think your Honor is applying some philosophy there; I think philosophy is appropriate. I think the most important point in the nature of the case that we have here today is the youth of the people who are involved.
THE COURT: Well I might also, in philosophizing, which may give additional ground for error, but nevertheless I think I should state, in candor, I should submit my view that while we are applying the statute or policies enacted by Congress, that also, the court has [to enforce a] clear command of the federal government which is established by the provisional powers of Congress and the Constitution, must respect the Constitution itself, and that therefore as far as the court is concerned we must accept the war powers as being just as valid as the First Amendment to the Constitution, and that the legislation in the area of national defense is expressive of the public policy of the United States, and that [it must] be accepted and carried out by the courts, and in the exercise of their constitutional and the legal functioning, and the court, I must consider patriotism as a laudable and virtuous state of mind, and not as obsolete or old fashioned, and that I must also consider the comparison or relationship of those who seek to evade or avoid service with those who do render it.
I am compelled to conclude that those who do serve their country in the armed forces are performing praiseworthy and laudable actions, and that we must consider them as deserving the praise and respect of the nation whom they are serving, and accordingly we must recognize that they do and in fact are exercising a type of activity which deprives them of their customary freedom of choice, and of activity, and that they are subjected to a diminution of their liberty, they are also subjected to hardships, perils, and dangers. Consequently the status and the state and condition of somebody who withdraws from the System ought not to be a more advantageous one than the person who accepts the responsibility of citizenship, and to make sure that this is the case, the defendant in a case such as this, in my judgment should also be subjected to diminution of liberty and hardships and hazards and perils; and just as in the case of an income tax violation where the object is profit, I think the defendant should also be fined at least twice the amount of the sum that he has defrauded the government of, so here I think in order to make sure the status of those who avoid service is not more advantageous than those who submit to it, the penalty of the one who violates it should be at least twice as much as that of those who serve; so therefore, if we consider the hardships and deprivations of liberty connected with incarceration as the equivalent of those [which men] in the armed services are subjected to, and we come out with the result that the standard sentence which I have always hitherto imposed in this [type of] case is a sentence of four years imprisonment.
In this case it appears that the defendant deliberately failed to exhaust his remedies under the Selective Service System; he did write these comments in bad taste to the secretary, and in fact I really think that probably five years would be justified in this case, but I will follow the usual custom and therefore it is the sentence and judgment of the court that the defendant pay the costs of prosecution and be committed to the custody of the Attorney General of the United States or his duly authorized deputies, for confinement in a penal type institution for a period of four years.