Diversity of perspective is a consideration as important as the honesty of current and prospective judges when it comes to the proper operation of America’s legal system.
Thank you Medea Benjamin for providing me another opportunity to suggest that ensuring the fairness and impartiality of America’s judiciary involves, but is not limited to combating dishonesty and deliberate corruption.
She may not have contemplated the subject of this article, and she certainly was not considering my book when she wrote her article published today by “Nation of Change”, but activist Medea Benjamin hearkened to concerns addressed by this article and my book Exploring the Vitality of Stare Decisis in America. I encourage all veteran and budding legal reform activists to read at least the hefty portion of my book that can be downloaded for free. If your reading starts there, the atmosphere is less likely to seem “stuffy” during arguably high-brow, somewhat scholarly passages of the book.
Among others, Benjamin writes with regard to David Barron, a Harvard law professor whom President Obama recently nominated to join the First Circuit Court of Appeals as a federal judge. Per Benjamin’s article, while a Justice Department attorney, “Barron wrote at least 2 secret legal memos justifying the use of lethal drones to kill Americans suspected of involvement in terrorist activities.”
Benjamin reminds us that Barron is not the first “high-level lawyer (essentially rewarded) for paving the legal way for drone strike assassinations.” She asks, “(s)hould someone (such as Barron) who has done such immense damage to the rule of law and our moral sensibilities be awarded with a judgeship on the First Circuit Court?” At the core of this question is a concern addressed at Fogg’s debut symposium on stare decisis and confirmed by my related book.
Regardless of the religious, racial, socio-economic and similar diversity they bring to the bench, there is a certain “same-ness” among U.S. judges that my book and some thought leaders it features suggest is troubling:
Perhaps Professor Lanier’s conclusion that ‘. . . judges who are free from potential domination by other branches of government are judicially independent’ should be revisited.In other words, perhaps a cookie-cutter is not the best judicial selection tool in America!
Professor Lanier’s featured article confirms that U.S. federal courts have all ‘the structural elements that must be present for courts to be independent.’ Yet the federal judiciary has a certain homogeneity attendant to being dominated by former institutional actors as Professor Rachlinski describes. Imagine these homogeneous, but presumably ethical, competent ‘. . . judges (believing) they can decide and (deciding) consistent with their own political attitudes, values and conceptions of judicial role (in their interpretation of the law), . . . in opposition to what others, who (do not) have or are believed to (not) have political or judicial power, think about or desire in like matters, . . . particularly when a decision adverse to the beliefs or desires of those (without) political or judicial power (is unlikely to) bring some retribution on the judges personally or on the power of the court.’ These judges could be unwittingly shackled by their shared mindset or proclivities.
Just one, but a major point of my book is that due process threatening bias infiltrates America’s legal system through more than back-room and back alley deals . . . the raw, moral depravity many people believe exists among lawyers and judges. In the context of input from Fogg Panelist Kylar Broadus, I explain:
Even without knowing misconduct, it seems a judicial bench insensitive to, in Professor Broadus’ words, ‘folks who don’t conform to the gender binary’, may be less than ‘independent’; especially if related decisions and the bias they perpetuate, mesh with executive and legislative branches of government as well as dominant political forces. Professor Broadus referenced at the University of Baltimore the difficulty many Americans have mustering stamina and funds to overcome such ‘hurdles’. I explained: ‘(a)necdotal and some statistical evidence suggest it’s often impossible to trigger authentic judicial oversight by any branch of American government without massive public outcry and/or playing into the political or personal agenda of key decision makers.’ I added, ‘(p)rivate individuals should not need years of multi-faceted promotion and activism by public interest advocates with multi-million dollar budgets and/or an army of unbelievably committed volunteers, just to have a chance of overcoming even blatant injustice in America.’So, diversity of perspective is a consideration as important as the honesty of current and prospective judges when it comes to the proper operation of America’s legal system. Thank you Medea for providing me another opportunity to suggest that ensuring the fairness and impartiality of America’s judiciary involves, but is not limited to combating dishonesty and deliberate corruption.**
Zena Crenshaw-Logal, Executive Director
National Judicial Conduct and Disability Law Project, Inc.
*The second symposium took place in 2012 at Loyola University School of Law in Los Angeles, California. My report on that gathering is a year over-due . . . but it’s coming, and will be well worth the wait given the important analyses shared by our 2012 panelists.
**I make a similar point in the article Can We Look Past The Legal System Scumbags And Agree There Is No Rule Of Law Without Meaningful Citizen Oversight?