If you needed a custom-made suit, how would you go about looking
for a tailor? Would you try to seek out a republican, or a democrat?
Would you worry that your jacket would be too tight if he is a liberal,
or the trousers too loose if he is a conservative?
You won't care.
Your only concern would be that he knows how to cut right, and sew
well, the pieces of cloth. Tailoring and politics have nothing to do
with one another.
The same goes for almost every other human
occupation. Whether you are an electrician or a plumber, a dentist or a
baker, the quality of your product has nothing to do with your party or
your political philosophy.
But there is one profession and one product that are a glaring exception to this rule.
The profession is a judge, and the product is justice.
When,
while in pursuit of happiness, "we the people" bump into one another,
or into the superstructure of the state, and need to resolve our
differences, we go to courts. And while politics means nothing in a
tailor's workshop, in a courtroom it makes all the difference in the
world. Unlike the shape of the suit of clothes, the outcome of a lawsuit
depends entirely on judge's political views. Verdict rendered by a
republican will likely differ from that coming from a democrat;
conservative judge's decision will be the opposite of that coming from a
liberal; and a "strict constructionist" will decide differently from an
"activist judge."
This is made perfectly clear in the work of the
Supreme Court, where nine justices examine the exact same case - and
often come to the opposite conclusions. And to think of it, the "four to
five" decision means that almost half of the justices, if left to their
own devices, would render an unjust verdict.
Now, the Supreme
Court justices are greatest legal luminaries in the land - and if the
best of the best can go wobbly, how reliable are the judges who preside
over lower, one-judge courts, and who are neither as bright, nor have
peers on the bench to straiten them out?
Those can operate in a
thoroughly bizarre manner. In a recent case where one side presented an
argument heavily supported by the evidence and the other provided mere
negative rhetoric, the judge was caught in a dilemma. The simple
weighing of fluff against substance would have produced a result utterly
at variance with his politics and "legal philosophy." So what did he
do? Going back to his lawyerly past, he invented a totally new argument
for the fluff-supplying party right in his decision, and gave victory to
his own argument! The substance party protested that it never saw that
argument until the decision was made, and would have easily defeated it
if it did, supplying a thorough rebuttal - but the lawyer/"judge" was
adamant. With his politics and "judicial philosophy" at stake, such
minor matters as law, fact, logic, procedure, and justice, mattered
nothing.
And there is no remedy, despite the existence of two
layers of appellative courts, the Appeals and the Supreme Court. The
Appeals court has to take for review all cases from all courts on its
circuit, and so can dole but very little time to each one. 15 minutes
are given to each party to present its case, with questions from the
judges making one painfully aware that they do not understand even the
bare basics of a case they are trying to judge; so no justice is to be
expected there. The Supreme Court has the opposite problem. It gives
thorough consideration to the cases it takes, but because of that it can
only take a few - in fact, its capacity is limited to less than 2% of
those submitted. So while the Appeals court is accessible, it is of
necessity so shallow as to be of no use; the Supreme Court may be good,
but is of necessity practically inaccessible, and hence, is equally
useless.
With lower courts producing injustice at a rate of 65%
(the percentage of Supreme Court cases that overturn lower courts'
decisions - and what is true for less than 2% of cases that the Supreme
Court is capable of considering, also has to be true for more than 98%
of cases it has no time to look into), shouldn't we seek a better way of
generating justice than the one we have now?
Well, the
cornerstone of present-day judging is judge's "judicial philosophy" -
judge's perception of what is important for the society. Naturally, this
depends on judge's political outlook - which is why there is so much
partisanship over selection of federal judges, and the appointment of
every Supreme Court justice is such an entertaining political show.
But
reliance on "judicial philosophy" is totally at odds with rendering
justice. As if the appalling statistics of unjustly-decided cases were
not enough, proponents of the "judicial philosophy" approach explicitly
tell us that rendering justice is, to them, of a very low priority.
Roscoe Pound, a dean of the Harvard Law School in the early twentieth
century and a legal scholar touted as "the schoolmaster of American
bar," had this to say about the formative, pre-Civil War years of the
American legal system: "For a time it was meet that John Doe suffer for a
commonwealth's sake. Often it was less important to decide the
particular case justly than to work out a sound and just rule for the
future." Quite apart from Mr. Pound's obvious inability to reason that
is evinced by this passage (it is impossible to arrive at a sound
general theory from fallacious particulars), the passage unmistakably
states that a "judicial philosophy" has nothing to do with justice. Mark
Twain aptly summarized the "free contract" "judicial philosophy"
prevalent during America's "Gilded Age" as follows: "the meanest of us
would not claim that we possess a court treacherous enough to enforce a
law against a railroad company." Not much justice here. And any other
"judicial philosophy" simply passes court favoritism to some other group
of players, and consequently subjects someone else to injustice.
But exercising justice through enforcing "judicial philosophy" is not the only method of judging there is.
Look
at any symbolic representation of Justice and you will see a
blindfolded woman holding a scale. The blindfold symbolizes impartiality
(that is, the absence of a "judicial philosophy"), and the scale is to
weigh the sides' argument so as to determine a winner.
That method
of judging is very straightforward, and very reliable indeed. The judge
first examines each side's argument separately, checking it for
relevance and for logical consistency. Then, he matches opposing
arguments that pertain to the same issue. Finally, he compares them one
by one. The party with the stronger arguments wins.
To use such
procedure, one does not need to have a legal background at all. A judge
has to be a trained logician rather than a legal scholar. Logic being
judge's only tool, personal politics will have as little place in
generating justice in a lawsuit as they have in tailoring a suit of
clothes; and the decision in each case would fit that case only, and fit
it as precisely as a tailor-made suit fits a person it is made for. The
decision will be judged and appealed on the quality of its logical
analysis, and the judge with poor skills in logic reprimanded and
shunned just as if he were an unskillful tailor.
The switch from
"judicial philosophy" to logic in generating justice will undoubtedly
change the social status of judges. They will no longer be venerated as
augurs officiating at deep mysteries in the high temple of Law, but will
become white-collar professionals, like accountants or computer
programmers; and in fact, their work will become heavily computerized,
the future Bill Gates and Steve Jobs undoubtedly creating electronic
tools that would largely automate judicial decision-making.
Yet,
the loss in judicial prestige will be a gain for the society. After all,
we go to courts not to get a dose of philosophy, but to find justice,
and providing justice is the only reason why the courts exist. At the
present, their rate of success is abysmal; they will do their job
incomparably better when our antiquated system of "judicial philosophy"
goes the way of equally ancient, and equally useless, astrology and
alchemy.
The light of logic and reason will hopefully prevail over
the medieval darkness of the present-day American justice system, which
provides perhaps for social stability, but has a very hard time indeed
producing the one and only thing it was ever meant to produce - justice.
