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Michael McShane
Judge Michael McShane

Obama's Empathy Rule: Alive and Well in the Second Term - JAG's Executive Director writes on National Reveiew Online's Bench Memos discussing why Judge McShane, and other nominees, show President Obama continues to pick his judges by a troubling standard despite what he tells the American people.


Judge McShane’s Record Raises Red Flags and

Indicates that Obama Continues to Apply the “Empathy Standard”

Senators Should Carefully Examine McShane’s Record

Click here for a full copy of the below research including footnotes and refereces.

In his Ruling in Shogun Gallery, McShane Engaged in Textbook Judicial Activism by Departing from the Text of the Law in Order to Create a Different Result. In Shogun’s Gallery, Inc. v. Merrill, McShane ignored the text of a contract and re-wrote a rent provision of a commercial/business lease to reduce the rent well below the clear rate agreed to by the parties in the text of their contract. There was no allegation of fraud or other factors. The appellants argued that McShane “rewrote [the lease] in order to create what [McShane] believed was a fair outcome.” The appellate court agreed and reversed McShane holding that “to reach a contrary result would require the court to … insert text limiting the use of the assessor’s statement. We cannot do so. The text of [the law] unambiguously supports defendants’ [and contradicts McShane’s] interpretation of the lease.”

McShane Impliedly Counseled A Defendant to Use Drugs and Then Picked the Defendant Up and Drove Him to a Drug Treatment Center. McShane admits to becoming emotionally involved in a case before his court that led him to explain to one particular defendant (Ryan Santana) that he must use drugs in order to be admitted into treatment. The news report details that “McShane stated: ‘[h]e’s somebody in front of you who’s in crisis now. Your only option is to be a disinterested observer and watch a train wreck, or step in,’ McShane says. ‘Once you step in, you’re committed emotionally, whether you want to be or not.’” (Emphasis added.) During McShane’s involvement, he recommended that Santana check in to a drug treatment center that had “a glaring paradox – [that] clients need to test positive for drugs to enter the program. McShane had to warn Santana not to show up clean. ‘That’s the conversation that’s odd for a judge,’ McShane says. ‘I wasn’t telling him to go get high, but it is an odd conversation to have.’” (Emphasis added.)

McShane’s “Judicial Temperament” is Questionable. McShane (as sitting judge) wrote a letter to the editor defending Sheriff Bernie Guisto against the online newspaper’s indictment for the Sheriff’s record on instances of inmate sex and rape. McShane mis-characterized the news report by claiming that the report suggested “that our jails are an orgy of inmate sex and brutality,” when in fact the website reasonably commented that “better oversight may mean less inmate sex.” McShane’s straw man argument in defense of lax law enforcement, shows a lack of restraint for a sitting judge.

It Appears that McShane Did Not Properly Disclose Two Items to the Senate Judiciary Committee.

  • Pursuant to Section 12 of his Questionnaire, McShane does disclose an article about his controversial interaction with a heroin addict (Ryan Santana) where McShane recommended that Santana use heroin in order to enter a drug treatment center; however McShane fails to disclose the follow up article that reveals that McShane’s efforts ultimately failed and Santana relasped. Both articles appeared in the same publication. It is not clear why McShane lists the first article but omits the second.
  • McShane’s claims on his Questionnaire at Section 14(h): “I do not have any significant opinions on federal or state constitutional issues.” However, McShane did issue a ruling striking down a local ordinance as unconstitutional. McShane did properly disclose an article discussing the above ruling under the “interviews” section of his Questionnaire (12(e)), but does not disclose the case under the Section 13(h) about “significant opinions on federal or state constitutional” at page 25 of his Questionnaire. It is possible that McShane did not list this case under Section 13(h) because he did not consider it “significant.” However, the case was significant enough to warrant media coverage, and the prudent and respectful course would have been for McShane to list the case under Section 13(h) and let the Senate determine whether or not it was significant.

McShane Represented One of the Worst Child Rapists in U.S. History, Secured a Light Sentence for the Pedophile, and Then Described the Pedophile’s Light Sentences as Good “Luck”; The Pedophile Went on to Rape Additional Children After McShane Secured His Light Sentence. Recalling his previous role defending Dean Schwartzmiller, one of the worst and most prolific serial child rapists in U.S. history who is said to have molested hundreds or even thousands of children over the course of thirty (30) or more years in several countries, McShane attributed Schwartzmiller’s continued ability to evade conviction and long sentences of his crimes as having “…had better luck than anybody I know in the criminal justice system…” McShane defended Schwartzmiller for his admitted rape and sodomizing of one particular boy – after Schwartzmiller’s known history of child rape, and previous convictions. After McShane’s procurement of the light sentence for Schwartzmiller, Schwartzmiller continued to rape children. McShane represented a number of criminal defendants during this legal career but his comments about this most horrific defendant’s ability to evade punishment and continue raping children does not show good judgment.

Click here for a full copy of the above research including footnotes and refereces.

TAKE ACTION: Contact your senators and tell them to take a very close look at Michael McShane! Click here to find your Senators' contact information.