Day By Day© by Chris Muir.

Thursday, October 06, 2005

I'm glad Miers hasn't been a judge before

Now that it's been established that it's tacky to complain about Miers' failure to graduate from an Ivy League school, the new focus is her lack of judicial experience. (See, e.g., one of the rare Power Line posts with which I disagree, to the extent it suggests that Miers' lack of judicial experience is a handicap.) Setting aside the fact that over forty Supreme Court justices had no prior judicial experience when they took their place on the Supreme Court, I think it's looking at the thing bass-ackward to deride Miers' lack of judicial experience. I suggest that it's simply fantastic that she hasn't been corrupted by time on the bench. Corrupted sounds like a pretty strong word, doesn't it? But I do mean precisely that word, because I think the problems with today's legal system -- and it is a deeply troubled one -- can be traced to the judges, not the lawyers. To begin with, think of a courtroom as something akin to the lions' cage at the circus. The lawyers are the lions, assigned to their little stands. They growl, roar and attempt to lunge at each other. The judge is the ringmaster. It's his job to keep them in their place. Now, most judges understand this role at a very simplistic level: they'll make sure that the lawyers in their Courtroom abide by certain rules of conduct, such as the rule that says you speak only to the judge or jury, not to opposing counsel directly; or the rule that says that, if you insult the judge, you can be found guilty of contempt. Courtrooms are superficially polite places. What the majority of judges I've appeared before don't understand is that their ringmaster role extends beyond superficialities. They are also responsible for ensuring that lawyers, as part of their howl and growl, are not allowed to advance patently improper legal theories. And yet that's one thing judges don't want to do. Part of the problem is that many courts don't have a single assignment system, where one judge sees every facet of a case from the day it strolls into court until the day it is either booted out or waltzes out with a judgment attached. Instead, courts are broken down in little departments, with one judge looking at discovery issues (all the information seeking that is done in the lead-up to a trial), while another judge handles all of the legal maneuverings before trial (including all the motions aimed at getting the case knocked out of court), while yet another judge handles what kind of a trial it should be (judge or jury). These three different judges can keep a case rolling along for years before it ever gets before the trial judge. This is not hypothetical. I've seen cases that didn't have a legal leg to stand on get shunted back and forth from one department to another, only to be summarily dismissed when the trial court judge realized that, unless he acted swiftly, he'd have to sit through a ten week trial based on junk law. So one of the problems with judges is that many of them sit in a system that encourages a "pass the buck" mentality that in itself is intellectually corrupting. There is a deeper problem with judges, and that is the arrogance that sets in after several years on the bench. Within the courtroom, judges have people behaving toward them with a servile attitude that is not seen anywhere else in our more casual society. "Yes, your honor." "No, your honor." "May it please the Court." "With all due respect." There's nothing wrong with this level of civility and it does encourage respect for the law, which is an important thing. However, to the extent that this type of obsequious civility has vanished entirely from every other part of our culture, one can see that it's likely to increase a modern judge's sense of being special -- perhaps too special. Judges are also in the enviable position of getting the final word, at least most of the time. It is true that trial court judges run the risk of being overturned on appeal, but the fact is that this risk is minimal. Our judicial system is set up so that a trial court's judgment is to be preserved if there is any way to do so. At a systemic level, this makes perfect sense. Trial courts would become meaningless if the losing party (and there's always a losing party), knew that he could get the whole game back into play with an appeal. However, while this policy works at a system-wide level, it encourages a trial judge's sense of infallability, and that's dangerous. (The same goes for appellate court judges who are answerable -- infrequently -- to their State supreme court or to the United States Supreme Court.) It's so overused as to be trite, but I'll repeat here anyway Lord Acton's warning that "power corrupts, and absolute power corrupts absolutely." I also believe that this sense of absolute power has a more deleterious effect on judges who would identify themselves as nonreligious than on those who are religious. And by "religious," I mean holding a belief-system tied to a conservative, traditional belief about God, the law giver and arbiter of men's affairs, not a belief-system based on the modern touchy-feely religion that has good angels drifting around dispensing random acts of kindness. Those who are nonreligious, or whose religion has taken on a New Age tinge, tend to be moral relativists. To these moral relativists, nothing is inherently bad or wrong. This means that, if you (or one of the lawyers before you) can create an intellectual construct to support an outcome, that outcome is then as good as any other outcome, without regard to law from God or an elected Legislature. In the geographic area in which I practice, cultural relativism is the norm amongst the educated, the professionals, the elite (whatever label you wish to attach to them), something that was not the case when our American judicial system was first established. In my opinion, this has resulted in a group of judges who believe that, if they can reason their way to a conclusion that appeals to them emotionally, their reason-based outcome is acceptable -- something they have a lot of room to do if a case is not tied to a specific Legislative dictum. This too creates an intellectual arrogance that is frightening. Of course, everything I've said about judicial arrogance applies with special weight to the United States Supreme Court, since it's the final word on all legal subjects. And certainly I think that arrogance can be seen in the Breyers and Kennedys on the court, who believe that their ideas are bigger than mere American law, and who trawl around the world looking for some Court ruling, no matter how antithetical that court's legal system may be to American principles, to justify outcomes they've "reasoned" are correct. That's a kind of intellectual rot that can't be avoided, and any person who ascends to the Supreme Court runs the risk of falling prey to this arrogance. What I hope is that because (1) Miers has managed to function in the legal system successfully and effectively without being a judge; (2) she has probably spent decades bemoaning outcomes resulting from judicial arrogance; and (3) she recognizes the importance of law as it emanates from God, the law-giver, she will at least spend her first few years on the Court free of pre-existing rot, and may have the moral and intellectual strength to resist the corruption inherent in being a Supreme Court justice. And that is why I see it as a huge plus that Miers not only has real world experience, unlike most of our judges, but is free of the taint from preexisting judicial experience. [Categories: , .]