• Marc Johnson

Understanding the Mind of Other Men


In Federalist 78, Hamilton, writing as Publius, discussed several issues related to the judicial branch of the government that had been created under Constitution, including how judges would be appointed and why it was essential to their impartiality and independence that they be guaranteed “life tenure.”

Hamilton was an elegant writer, if somewhat prone to the run-on sentence. Here’s a key (long) sentence from his famous discourse on judges and the judiciary. “This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”

It would be understandable if you didn’t get all that in one reading, but Hamilton’s essential point was – I’ll put it in my words – that the judiciary ultimately stands as a guard against popular whims and government actions that run counter to the Constitution and individual liberties. The great Federalist admits – maybe hopes – that over time the people will be smart enough to figure out these “ill humors” and correct them, but in the short term, minus “more deliberate reflection” public men (and women) can and will make mistakes or, heaven forbid, stupid decisions.

The job of a judge – particularly a federal judge – is unique in our system and, as Alexander Hamilton and others argued, it must be unique in order for the delicate balance of competing interests among the three branches of government to work. Judges must have the opportunity to engage in “deliberate reflection” and the freedom to know that as long as they maintain certain ethical standard their jobs are not in jeopardy.

Not One of Us…

Idaho’s governor is a genial fellow. In the old days we might have referred to him, as in the old English phrase, as “a hail fellow well met.” I’ve heard Butch Otter quote Shakespeare and he’s been known to lace his speeches with references to the Founders, especially that champion of limited government Thomas Jefferson. Otter once courageously voted against his party and a Republican president when he argued that The Patriot Act, passed in the wake of the September 11 attacks, might well become a threat to civil liberties.

Ours is, as they say, a free country and sharply worded criticism from the lips of public officials is about as common as Groupon promotions, but the nature of Gov. Otter’s recent criticism of Idaho’s widely respected federal District Judge Lynn Winmill – Otter reported said the judge “isn’t one of us” – is just plain hard to figure. Otter went on to suggest that Winmill  “doesn’t share all of the enthusiasm for the marketplace and freedom that we do in Idaho.”

The governor may be able to quote Jefferson, but he may find it useful to re-read some Hamilton.

Read more here: http://blogs.idahostatesman.com/otters-blast-at-judge-winmill-hes-not-one-of-us/#storylink=cpy

Goodness knows federal judges are not – nor should they be – immune from serious criticism. Franklin Roosevelt once famously said after the U.S. Supreme Court had wiped out much New Deal legislation that the court was stuck “in the horse and buggy” era of judicial analysis. Dwight Eisenhower privately lamented the Brown v. Board of Education decision that struck down the decades of law that held that blacks and whites could gain the same quality of education in segregated schools that were “separate but equal.” Barack Obama dissed the current Supreme Court’s decision in the Citizens United case that opened the floodgates for corporate and labor money to wash into our politics. Criticism of judges is cheap and it is a free country.

What is interesting about the Idaho governor’s criticism is not that he made it, but that he has yet to offer any specifics that might illuminate both his criticism and how he thinks about the role of judges. After all, Otter regularly appoints state court judges. Some enterprising reporter needs to follow-up.

Meanwhile, as the Idaho Statesman’s Dan Popkey has noted, Winmill’s capabilities as a person deserving of life tenure was rather exhaustively vetted when he was nominated by President Bill Clinton 19 years ago. Then-Sen. Larry Craig took pains to explain to the Senate Judiciary Committee how diligent he and then-Sen. Dirk Kempthorne had been in assessing Winmill for a job on the federal bench. Craig said they had consulted widely with bipartisan members of the bar and retired judges and determined that Winmill “was extremely well qualified.” Needless to say, the two Republican senators didn’t rely for their analysis on the opinions of the Bannock County Democratic Central Committee, a group that also would have been high on Winmill.

When Kempthorne had his chance before the committee nearly two decades ago he quoted the Old Testament to the effect that “justice, and only justice” must be the pursuit of a judge and that Winmill “meets this test.”

Judge Winmill, who I have known since his early days in Bannock County politics, hardly needs any defense from me, but if you wonder, as I do, about the governor’s recent comments about the federal judge ask any lawyer you know for his or her take. I predict you’ll get an earful.

The Mind of a Judge

Years ago U.S. Supreme Court Justice Benjamin Cardozo, considered by most historians of the court as one of the greatest justices in the nation’s history, was asked who among his Supreme Court colleagues he considered to be the greatest living American jurist. Cardozo said, “the greatest living American jurist isn’t on the Supreme Court.” The greatest judge, Cardozo maintained, and he may well have been correct, was the hugely respected U.S. Appeals Court Judge Learned Hand of New York. Hand, who died in 1961, served on the federal bench for 52 years and was still deciding cases when he died. He is still regarded as the best judge to never make it to the Supreme Court.

Until 1944 Judge Hand was largely unknown outside of legal circles. Then he made a speech at a huge ceremony where thousands of immigrants became U.S. citizens. The speech both captured public imagination and served to articulate Hand’s own mind as a judge. He titled the speech “The Spirit of Liberty.”

“What then is the spirit of liberty? I cannot define it; I can only tell you my own faith,” Hand said. “The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the mind of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned but never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest.”

I was reminded of Judge Hand’s short and remarkable speech a few years back when I was in the audience when Judge Winmill, a man remarkably well-read in history as well as the law, called upon a detailed discussion of the infamous Dreyfus Affair – the scandalous anti-Semitic trial of a French military officer in the 1890’s – to illustrate a talk about the American system of justice. I have also heard the judge talk about the lessons of the now widely acknowledge miscarriage of justice that lead to the unconstitutional internment of Japanese-Americans during World War II and to the qualities required of a patriot.

I admit to bias about such things, but I like my life tenured judges to know about, think about and reflect on the kinds of ideas that judges like Learned Hand and Lynn Winmill did and do.

In Federalist 78 Alexander Hamilton made the case for life tenure for federal judges in order to insulate those judges from the pressures and partisanship of daily politics under our system. It’s not a perfect system, of course, politics and partisanship still leak in from time-to-time, but it is a system that has and still serves the nation pretty well. Hamilton recognized something else when he was writing in 1788 – that being a judge requires special skills not always widely available in society.

“Hence it is,” Hamilton said, “that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge.”

Integrity and knowledge then, when everything is said and done, is what we really must demand from a judge. Decisions and rulings, along with ill-defined criticism from politicians will come and go. Integrity and knowledge were the qualifications for the Founders and that should still be good enough for us.

Read more here: http://blogs.idahostatesman.com/otters-blast-at-judge-winmill-hes-not-one-of-us/#storylink=cpy

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©2021 by Marc C Johnson