Wednesday, May 13, 2009



Jeff Jacoby has written a column that tackles “judicial dispassion”. Good for him.

He defines it, nicely, as “the ability to decide cases without being influenced by personal feelings or political preferences”.

He then goes on to assert, accurately I would say, that it is “indispensable to the rule of law”. And that in the one sentence of the federal judicial Oath the point is expressed three times. And I would add that every sitting judge and justice should, upon getting up in the morning, take a moment , do nothing else, and repeat the Oath out loud to him/herself. Even when you’ve got a busy day packing to go shooting animals with a high-ranking member of the Executive Branch. Even when you’re packing to go give an address and get an award from some well-funded Advocacy group. Selah.

And whether you want to actually mean to enlist the aid of God (the Oath ends with “So help me God”), or whether in best modern and postmodern fashion you merely intend to rely on your own personal character and integrity and profound insight and integrity and good intentions … well, repeat the whole thing out loud anyway. Inoculate yourself against the giddy but queasy high of palling around with power, and against the equally queasy high that comes from being applauded by large numbers of folks who think that you (and therefore they) are ‘right and very clever’.

Fiat justitia ruat coelum: Let justice be done though the heavens may fall. Even if they fall on you for doing the aforesaid justice. Hell, call it Justice.

Jacoby continues: it is “the judge’s obligation to decide cases on the basis of fact and law, without regard to the litigants’ wealth or fame or social status”. That is “a venerable moral principle”.


One wonders if “social status” includes such now-entrenched ‘reserved categories’ of “social status” as gender and so forth. Because if there has been one complication that has arisen in the past forty (Biblical) years it has been the displacement of ‘equality before the Law’ by all manner of mental and legal reservations. And the ‘philosophical’ assurance that there is no ‘morality’ to which any judge or law need answer; only political influence. And the fear of political consequences disadvantageous to one’s own status and one’s political and promotional future.


I can’t help but notice that just as there have arisen all sorts of ‘reserved categories’ for whom the law must bend in favor, there have also now arisen assorted ‘reserved categories’ against whom the law must bend. That can’t be a coincidence. Concepts migrate, don’t they? And just as Tolkien’s Orcs were merely the darkling, monstrous copies of Tolkien’s Elves, so too the queasily totalitarian ‘disenfranchised categories’ arose as monstrous reverse-images of idealized ‘protected categories’ and classes. Ach. Oy.

Impressively, Jacoby goes on to quote Moses in the Book of Deuteronomy: “You shall not show partiality in judgment; you shall hear the small and the great alike … You shall not distort justice … Neither shall you be partial to a poor man in his dispute.” And this is, as I said, verrrry impressive. The unenlightened era of Deuteronomy saw that being ‘poor’ and being ‘the little guy’ did not automatically make you ‘right’.

No wonder that in the past forty years Advocacies have not much relied on Moses and Deuteronomy. The whole thrust has been to insist that being ‘oppressed’ – defined in a way favorable to the particular Advocacy’s constituency – means that a) you are indeed somehow ‘right’ and ‘good’ and that b) it is therefore right and just to bend the law on your behalf. The entire Rawlsian philosophical project presumes this and bulls forward to achieve the ensuing ‘vision’ of what a perfectly ‘just’ America would look like. Oy.

“Without judicial restraint there is no rule of law”. Bingo. The restraint part takes the shape of respecting the boundaries of one’s role and not going beyond them, no matter how well-intentioned you are and no matter how bright and sunny the uplands to which you seek to move the herd.

And the positive element of that responsibility for judicial restraint is to make sure that within those boundaries, you do everything in your power to make sure that you have all the accurate information you can get, and that you respect the accuracy where you find it, and truckle not to inaccuracy for the sake of any extra-legal ‘vision’ or out of any ‘good intentions’ and ‘higher considerations’. Your Oath is to be a judge, not a godling.

You are not, it is brutally and sadly true, helped by legislators who have already yielded their Oath to political considerations, passing all manner of lethal laws on the basis of verrrrry sketchy information and with no concern for larger societal or even Constitutional consequences. But you cannot allow yourself to ‘go along to get along’. If you think otherwise, watch “Judgment at Nuremberg” again. (They show that in Law Schools, don’t they? Didn’t you have to do at least one paper on it? Surely Spencer Tracy’s craggy Justice is not ‘quaint’ among those on the Bench … ? If so, kindly so inform Us, that We may make other arrangements for the Constitution and the Republic.)

In today’s ‘The New York Review of Books’ (not yet online)* a review of his new book quotes noted public intellectual and judge Richard Posner to the effect that a significant responsibility for the financial crisis lies with large banking institutions that could “raise large amounts of credit, in amounts and ways that can affect the entire system, without anyone taking account of, or feeling responsible for, the system-wide effects”. [italics mine]

Now this is a dot that cannot but be connected. For several decades now, in its sodden strategy of pandering to its politically-favored Identity Advocacies (who theoretically bring in votes) and its corporate, PAC-funding paymasters (who most surely bring in cash through the PACs), Congress has been setting a verrrrry baaaad example of precisely this failure to look carefully, seriously, and maturely at the “system-wide effects” (‘consequences’ is another word for that) of the assorted laws, from domestic-violence and sex-offense laws to the repeal of Glass-Steagall to the wars started in Iraq and Afghanistan.

And the ‘system’ at the heart of all of this is – not to put too fine a point on it – the Constitutional ethos itself, and the health of an actual democratic politics.

Nor can you imitate the Legislative Branch by figuring to smooth your path by giving those who demand special treatment whatever they want, while simultaneously giving those who demand more scope for untrammeled profit everything that they want. That is a lethal and repugnant form of ‘balance’, and it will end up inviting in numerous demons even worse than itself, and Our last condition will be worse than the first.

Jacoby is prompted to concern by Obama’s “empathy” standard. And rightly so (with all respect to what Obama is facing and what he is trying to accomplish).

Judges cannot be ruled by ‘empathy’. ‘Empathy’ is a ‘feeling’, and a key to many of Our most essential problems nowadays is that one’s ‘feelings’ are not and should not constitute a basis for the erection or administration of a system of Law and of laws.

Judges carrying out their tasks in such a fashion that ‘feelings’ outweigh ‘evidence’ has not had a good history. I wrote last year about the Salem Witch Trials, where those judges disregarded actual and factual evidence – even though English law was already moving beyond the medieval vestiges of emotionalism and ‘intuition’ – and killed a bunch of folks (legally, alas) in the process.

Worse, when what they did under the influence of their ‘feelings’ finally came to light, they had to resort to the destruction of the trial records in order to escape prosecution themselves. Which has a kinda very modern ring to it, does it not?

Empathy may come in the sentencing stage, certainly. But in the fact-finding stage a judge’s responsibility is to maintain a ruthless (yes, I mean it; though the heavens may fall) ascertaining of the truth and the facts of a case, in order to determine if the laws have been broken. And in trial judges, to ensure that the jury too, understands the purpose of the ‘trial’ stage of the proceedings.

‘Symbolic’ concerns – whether a particular finding will ‘send the right message’ – have no place in it. Surely, presuming that ‘facts don’t matter’ is an indisputably lethal virus to inject into the rule of law.**

As Thomas More responded when a friend urged him to use the laws wrongfully to preemptively discredit his enemies before they discredited him before the King: If I am chasing the devil and break all the laws down to catch him, but then he turns on me, what will protect me – the laws being all flat? It was some such awareness that prompted the Salem judges (minus one, Saltonstall, who resigned early in professional and moral disgust at how the proceedings were being conducted) to get rid of their own very trial records, to prevent being exposed and prosecuted, when ‘feelings’ finally subsided and truth was once again sought.

There was an external factor that stopped that ‘feeling’ stampede in Salem: Governor Phips, either out of decency or political prudence, sought review and authorization from the Crown for all the death-sentences being handed out. And the Crown, repelled by such reversion to primitivism and – face it – legal barbarism, evinced its most stern displeasure. And that was the end of it.

The dead, however, remained quite dead.

Once again, a perfectly good rule of thumb in one professional arena ‘migrated’ most improperly to another arena. Therapy must immerse itself in the ‘feelings’ of patients; and the good therapist must indeed ‘empathize’ with the patient in order to establish a ‘safe space’ in which both may eventually work on improvement (and not simply on ‘getting rid of’ such pain as the patient feels). Well and good. And the nation can use more competent therapists.

But a court of law, seeking to maintain the rule of law, has a different responsibility, and to carry out that responsibility, ‘feeling’ is not a useful tool; indeed, quite the opposite.

What have not helped one frakking whit are the migration of ‘therapeutic culture’ and especially the gender-feminist insistence that ‘reason’ and ‘fact’ are ‘patriarchal’ and ‘oppressive’ while ‘feeling’ and ‘intuition’ are liberating. While therapy has its rightful and necessary place in Our national activities, and while ‘feeling’ is an essential complement to ‘thinking’ and ‘fact’ in any genuinely mature adult, the idea that courts should therefore be concerned for ‘feeling’ and not ‘fact’ is nothing less than a pathway opened to a very dark, primitive, barbarous realm indeed. And one from which Western justice has only with much blood and terror managed to evolve. To urge ‘feeling’ in the fact-finding role of the courts is to invite a massive and monstrous legal regression.

And none of that will end well for Us as a society, a culture, and a Republic.


*”How To Understand the Disaster”, page 4, in ‘The New York Review of Books’, Volume LVI, Number 8, for May 14, 2009.

**It can hardly be a coincidence that an American prison system which held about 90,000 inmates in 1933 today holds upwards of 2.3 million. A combination of gender-feminism’s war on ‘males’ erected into laws, plus victimism’s promise-to-remove-all-fear, abetted by legislatures and far too many courts, as well as the media, cannot but be significant elements in this huge increase; an increase which at this point is chock-full of ongoing adverse consequences to America as both a society and a polity.

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