Justice, The Rule of Law, and Politically Biased Judges

Many moons ago when I was an idealistic young lawyer I thought if I just stayed current on the law I’d always do well in court.  I learned rather quickly that I would have to know the judge I was appearing before if I were going to come anywhere near predicting the outcome of any matter before that judge.

What about the law?  Well, I reasoned the law is not a science and there is always room for argument one way or the other so some judges are just going to see it a little differently from other judges.  But I thought most judges would differ only slightly and most would come fairly close on their decisions.

Maybe it’s just me, but everything seems a lot different now.  Knowing the law these days is not the most important thing, and maybe doesn’t matter at all.  It’s the liberal/conservative lineup of the court that matters.  On the Colorado Supreme Court that lineup is presently reputed to be 4 liberals and 3 conservatives.  With that information you can predict the outcome of most cases that have the slightest bearing on a political issue even if you know nothing about the law.  David Kopel has referred to the Colorado Supreme Court as a “lawless bunch” for relying more heavily on their personal political leanings than the law itself in deciding cases involving partisan political issues.

In Wisconsin the political lineup is said to be 4 conservatives and 3 liberals, and now Wisconsin Chief Justice Shirley Abrahamson is politicking to get JoAnne Kloppenburg, a liberal, on that court to replace current Justice David Prosser, a conservative, in next Tuesday’s election.  She wants the liberal/conservative lineup to change from the current 3:4 to 4:3 so that court’s future decisions will support Democrats. [UPDATE 4/5/2011: With all precincts reporting Kloppenburg claims victory with a 204 vote margin out of 1.5 million cast. The teachers’ union has bought themselves a judge. There were probably enough students in Madison that voted illegally (because they are registered in another state and claimed as dependents by their parents) to have made the difference. The winner will be determined in the recount. The outcome will depend on whether Prosser is willing to fight tooth and nail to uncover the fraudulent votes. Being a conservative, he probably isn’t.] [UPDATE II, 4/7/2011 BREAKING: Computer Error Could Give Prosser 7,381 More Votes, Victory Oh, please let this be true and make it hold!]

That the political lineup of the judges on a court can even be known with such facile certainty is a damning indictment against the pretense of fair and impartial justice being administered by that court.

If you listen to the lawyers that make up the professional associations they all say that what is most important to them is judicial independence from politics.  If they really believed that they would be working for the appointment of jurists that are more committed to the rule of law than to their political party.  Instead they defy their own pronouncements and advocate fervently for the appointment of individuals whom they believe can be relied upon to ignore or speciously argue against the law in any case where a reasonable application of the law would result in a loss for the side backed by the Democrat party and a win for Republicans. The political bias may not and need not be overt and intentional.  Ideology can be blinding.  But it matters little because the resulting corruption of the system is the same whether it was intended or merely the result of political blind spots.  Judges are supposed to be intelligent and sophisticated enough to recognize their own personal prejudices and to guard against them.  Something awful has happened to reverence for the rule of law, which every judge and every lawyer claims to love and defend.

There used to be something called judicial restraint which meant courts didn’t get involved in public policy matters which should properly be left to the people’s elected representatives. Once upon a time there was a maxim that courts decide only “cases and controversies,” that they enunciate and are guided by legal principles and do not decide political questions.   That’s all out the window now.  More and more the people’s voice is drowned out by unelected judges who apparently have such disdain for the people they will not allow the people’s representatives to make public policy decisions that liberals don’t agree with.  What this leads to is that there are no rules anymore to restrain the political excesses of the decision makers.  Worse, public policies are set not by any legitimate process where all sides are given fair hearing and opportunity to make their case.  The final decision reeks of having been pre-determined on a different basis.

As Francis Perretto at the Eternity Road blog so eloquently says, “Clear rules of right and wrong are what make it possible for men to share a nation without bloodshed.  Once those rules have been cast aside, what remains is naked force: the rule of the most ruthless and best armed.”

Armed with the power our republic gives to judges, liberals are ruthless toward their fellowman.  They don’t yet understand that once they have laid flat the rule of law the structure thus created can turn on them.

In Robert Bolt’s A Man For All Seasons, it is the law that eventually forces Sir Thomas More’s execution.  Nevertheless, the play also makes a powerful statement in support of the rule of law. At one point More’s future son-in-law, William Roper, urges him to arrest Richard Rich, whose perjury will eventually lead to More’s execution. More answers that Rich has broken no law, “And go he should if he were the Devil himself until he broke the law!” Roper is appalled at the idea of granting the Devil the benefit of law:

Roper: So now you’d give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I’d cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast — man’s laws, not God’s — and if you cut them down — and you’re just the man to do it — d’you really think you could stand upright in the winds that would blow then?

Republicans are not the Devil even if Democrats think so.  Liberal judges should give Republicans the benefit of the rule of law, and let the outcome of “cases and controversies” fall as they will.  That would mean that in some cases, such a court would refuse to act at all, in deference to the elected branches of government.  That’s what separation of powers with its checks and balances is all about.

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