On Labelling Judges

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Color them red, and blue, and that’s it? I think there’s more to it…..

I often think we — and be we I mean all of us collectively, people, journalists, politicians, etc. — overestimate the degree to which judges appointed by a particular president continue to represent that president’s point of view for the rest of their careers. I am also suspicious of the meaning of the labels “liberal” and “conservative” as applied to jurists, and as used to predict their future opinions.

Years ago a friend of mine was summoned to jury duty. It was a long, complicated and serious case, a charge of manslaughter as I recall. My friend was the owner of a small construction company, a Republican, a hunter and second-amendment guy, who didn’t have much good to say about people who didn’t look and think as he did. (As I recall it, the accused at trial was a member of a minority.) Some time after the trial was over I ran into him and asked him how it had gone. His answer surprised me. 

“I tell you what,” he began, “if I ever get in trouble I hope I get a judge and jury who work as hard to get at the truth as we did.” He was — there is no other word for it — awed by the working of the law, and had been totally unprepared for the challenges of the task. It was extremely difficult at first, he said, to shuck all of his preconceptions, suppositions and prejudices and consider only the evidence properly placed before them in that courtroom. He couldn’t get his head around the concept until it occurred to him that it was like sitting down to play a game of Monopoly; you thought and acted according to the rules of the game, not the rules by which you lived your life.  

After a while he said it was as if the sights and sounds of the outside world became muted, and the facts in evidence, along with the arguments of the contesting attorneys and the rulings of the judge, took over their complete attention. When the trial was over, he said, it took him days to readjust to reality. And he said he would never again be quick to judge someone based on a news story or some gossip.

I think of my friend every time I hear someone say that so-and-so was appointed to the federal bench by Nixon, or by Clinton, and assume from that single fact that they know what the judge is going to rule, and why. For one thing, there is no job on earth more secure than that of a federal judge. It’s a lifetime appointment that no president can rescind, including the one who made the appointment. Presidents, on the other hand, serve four or eight years and vanish.    

Just last July, two Supreme Court justices appointed by President Trump ruled against him in two landmark cases concerning release of his tax returns and financial information. This while the famously vengeful  Trump was still in office. A lot of Washington insiders were carried out in a dead faint.

Now, many feathers are being fluffed over the religious beliefs of the current Trump nominee to the court, Amy Coney Barrett. After paying lip service to the fact that the Constitution forbids a religious test for appointment to the court — or any other office of the republic — her opponents’ mantra is “well, sure but she is a very conservative Catholic, you know.” She wrote an article about her own beliefs — one that some members of Congress used in opposition to her appointment to the federal bench. In that article she enumerated some very conservative Catholic religious beliefs, and then said that if they bore in any way upon any case that came before her she would recuse herself. Which is exactly the right position, and all you can ask of any judge. 

I am well aware that there are judges with ‘liberal” and “conservative” tendencies. But if they do not want to be reversed on appeal — and they most assuredly do not — they keep their tendencies on a short leash in the courtroom.

There’s a reason why it takes three years to get a law degree, and decades of experience as a lawyer to qualify for a judgeship — the law is complicated. As my friend the juror discovered, it requires that people before the bar of justice think and act much differently than they are accustomed to do in order to achieve justice. People acting in a courtroom are required to shed their religious, political, racial, gender and class presuppositions in order to do their job.

If, for example, a justice is going to rule to reverse Roe v. Wade, the basis of present abortion law, it  cannot be because the justice, hates abortion. To stand, the decision must be based on the requirements of the Constitution and the precedents of the law.

To assume that an experienced judge will abandon the hard-won practices of a long career and suddenly start handing down only conservative Republican, or liberal Democratic, decisions strikes me as simplistic. (I know, Clarence Thomas, but still…..)