Judicial Restraint

You can fool all the people some of the time--Lincoln. You know, Lincoln had been a lawyer.

I have to admit that I was gullible in connection with my regard for US federal judges. I knew that most judges are political appointees but I thought that at the federal level merit ruled. The one or two I had known personally either before appointment or while on the bench were, to my mind, incredibly smart and seemed like paragons of moral rectitude.

That sort of idealization goeth before a fall. And it happened two years ago when I was invited to view a special reading of Shakespeare’s Julius Ceaser sponsored by the Federalist Society, the conservative group that has had a big influence on federal judicial appointments under Bush. The readers were a distinguished group including five federal judges, four members of the Board of Overseers of Harvard University (including its president), two hiring partners of separate white-shoe law firms in Boston and two high priced private lawyers. The goal was to read an abridged version of the play and then discuss the question of whether the current US President had exceeded his constitutional role.

I never expected these worthies to be great actor/readers. And a couple of them were just awful. But it was the discussion afterward which caused me to reevaluate my previous estimates of judicial intelligence. No one had anything remotely brilliant to say. And when an audience member brought up an essential question he was told flatly by one of these great thinkers that he was just a “Bush hater!”

Now I regard that kind of ad hominem dismissal of a serious critic to be the province of flacks like Karl Rove or Tony Snow because it’s so obviously a way of trivializing the critic’s issues and avoiding addressing them substantively. So they lost me when none of them objected or indeed addressed the question. And what was the question? It was whether the administrations actions both in going to war in Iraq and then diminishing the rights of prisoners as at Guantanomo, didn’t retrospectively lend credence to the argument of the Nazi sympathizers that the judgments at Nuremberg were no more that victors’ justice.

It’s an interesting point because two of the charges under which death sentences were carried out at Nuremberg were carrying out preventive war and meting out serious mistreatment of military prisoners. And it lead to revision of the Geneva`Conventions that Attorney General Gonzales has deemed “quaint.”

Now I’m more inclined to smile more inclusively and broadly at the old saw, “What do you call a lawyer who is too incompetent to practice.?” Answer; “Your honor”