Judges, Justice, and a Gulf in Between

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.