James M. Redwine

Abraham Lincoln

The Harder Right

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Gentle Reader do not despair. We have reached the final week of our discussion of the Internet course for Rural Court Judges. You will no doubt recall our previous sessions on the scintillating topics of Rural Court Case and Court Management. Well, the best is yet to come. I only wish we could hear from the student judges from Alaska to Maryland who attended the seven week National Judicial College course that I helped teach. Surely they were filled with the same excitement I felt as an Indiana University freshman law student during Contracts classes, perhaps much as you have been while reading Gavel Gamut the past few weeks. But, all good things must come to an end so let us summarize what we have studied.

We started with the proposition that the most essential criterion for being a Rural Court judge, or any judge, is good character. Intelligence and industry are fine attributes but ring hollow if a judge cannot choose the harder right over the easier wrong. As Socrates told his Athenian judges who tried to have it both ways, “Your job is to do justice, not make a present of it.”

You may remember the prescient observation made by Alexis de Tocqueville (1805-1859) when he wrote of his impressions of America in Democracy in America: “In America practically every political question eventually becomes a judicial one.” Of course, for those questions to be answered properly the judiciary must be fair and impartial and the public must have confidence they are; politics must not enter into a judge’s decisions.

That astute one-time Hoosier Abraham Lincoln who knew a little bit about politics and a lot about judging saw the legal profession’s role as to first be peacekeepers. To keep the peace judges must enjoy the public’s confidence in the absolute impartiality of judicial decisions. Character is the cloak that must robe a judge.

And when a judge is faced with those difficult cases where he or she is tempted to slip off the blindfold and tip the scales of justice, the only refuge a judge has is his or her character. That is what judges heard during our Internet course and what Bobby Kennedy meant when he said, “Some see things as they are and ask, why? I dream what things could be and ask, why not?”

Of course, society often rewards those of weak character and severely punishes those who choose the harder right. But that pressure is what judges must withstand. So where we start and end our course on Rural Court judges is the same proposition: judges must keep the blindfold on and their thumbs off the scale.

Feet of Clay

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Picture by Peg Redwine

William Shakespeare had Marc Antony preach these words at Julius Caesar’s funeral:

“The evil that men do lives after them; the good is oft interred with their bones.”

Act III, Scene 2

Antony went on to list Caesar’s accomplishments in addition to his being ambitious. There was some good, some bad. Perhaps the citizens of Rome should have erected a partial statue of Caesar honoring just the good parts.

This could be a solution to our current controversy over monuments to historic figures. A committee could be composed of people who admire the works of a now dead leader and those who find the figure’s behavior flawed. A few examples might be helpful.

George Washington survived Valley Forge, presided over the Constitutional Convention and refused the opportunity to be named an emperor. On the other hand he owned hundreds of slaves and helped enshrine slavery into our legal system. The Committee might consider cutting the Washington Monument in half.

Thomas Jefferson was responsible for the Bill of Rights that guaranteed individual liberty but only to twenty-one year old white males. He also owned slaves and had children by one of them. Today such an employer/subject relationship would result in severe censure. Perhaps the Committee might recommend the Jefferson Memorial be closed every other week.

As we search for unblemished heroes to honor we could consider Abraham Lincoln who issued the Emancipation Proclamation. However, he at first averred slavery would be preferable to the disintegration of the Union and the Proclamation did not free all slaves just those in the states of the Confederacy. The Committee could maybe have a disclaimer added as a placard around his statue’s neck.

Andrew Jackson committed adultery, captured Seminole Indians under a flag of truce and as president created The Trail of Tears. On the other hand, he was a courageous and victorious military leader. A short bronze bust could replace his heroic sized statue.

As for Mount Rushmore the Committee would have to remove at least 3 of the 4 figures. Of course, Teddy Roosevelt had a penchant for shooting animals which might upset the ASPCA; so all 4 might have to be erased.

Right here in Posey County, Indiana we have a dilemma about what to do with our most famous citizen. Alvin Peterson Hovey was once Posey Circuit Court Judge, a Civil War general for the Union and our only governor. Unfortunately, he also was instrumental in helping to cover up the murders of seven Black men in October 1878. One of those Black men was shot and stuffed into a hollow tree on a farm owned by Hovey. Will the Committee have to remove the glowing patina from Hovey’s bronze in the Indiana State House?

One might look to Jesus as the paragon of virtue but even he got angry and threw the moneychangers out of the temple. He, also, voiced his hope that the cup of his great travail might pass from him. On the other hand, apparently no one knows what Jesus looked like unless one believes the Shroud of Turin is a clue. I guess the Committee would not be able to find any statues of Jesus to modify.

It appears that history has not provided us with any perfect examples to honor. Maybe the Committee will have to suggest that all statues be modified by substituting feet of clay.

Picture by Peg Redwine

Do Right While We Help Ourselves

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If you read last week’s column (hey, I can dream can’t I), you know I am preparing to help the National Judicial College teach Rural Court Judges. Last week we talked about the theory that our law arises from our history and culture, our Volksgeist. Or as Oliver Wendell Holmes, Jr. (1841-1935) put it, “The life of the law has not been logic; it has been experience”.

Posey County, Indiana has produced several influential thinkers on what our law should be and do, that is, what is the proper purpose of our legal system? Our most famous citizen was and still is Alvin P. Hovey (1821–1891). Hovey was an attorney, a Posey Circuit Court judge, a general and the only governor to ever come from Posey County (1889–1891). He also sat on the Indiana Supreme Court when it decided a poor person was entitled to the same protection of our laws as a rich person.

Another of our famous predecessors was the brilliant and courageous Frances (Mad Fanny) Wright (1795–1852) who gave her entire adult life to an effort to free slaves and secure equal rights for women. Unfortunately, her good deeds were often overshadowed by her lifestyle. Still she fought for those who could not fight for themselves.

Frances Wright’s companion and fellow traveler was former Congressman Robert Dale Owen (1801–1877). Owen knew Abraham Lincoln from having served in Congress in 1843–1847 while Lincoln served in Congress 1847–1849. Owen’s 1863 letter to Lincoln urging him to free the slaves is credited with influencing the President to issue the Emancipation Proclamation.

Robert Owen and Alvin Hovey were also Posey County’s delegates to the Indiana Constitutional Convention of 1850–1852 that produced our 1852 Constitution in which our legal system demands fair and equal treatment regardless of a person’s ability to pay. The Preamble sets forth the first principle of our government is to establish justice and, as set forth in Article I, “That all people are created equal”.

Article I, Section 12, guarantees equal justice to rich and poor alike: 

“All courts shall be open and every person for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.” 

While there are many reasons we need justice from our legal system, I suggest the two most important areas concern whether our government wants to lock us up or take away our children. Of course, there are many wealthy people who are charged with crimes and even some wealthy people who the rest of us believe should lose their children to state care. However, it is simply a fact that most people who go to jail are poor as are most parents whose children are removed by the courts.

It is usually the poor and powerless who are caught up in the terrifying, confusing and expensive legal system. And frequently these poor people are not highly educated nor do they have friends in high places. They need help and both Indiana and federal law guarantee that help to them, including representation by an attorney. If the rest of us want to lock someone up or take away their children, the least we can do is follow the law ourselves and provide these people with legal assistance as our Constitutions demand. This is not only required by law, fair, just and reasonable, it is good for all of us. If the innocent are not locked up or the guilty are fairly sentenced or children are not removed when unnecessary or when necessary are removed carefully and with efforts to help the children and the parents, such justice is in our own self interest. In other words, not only is it right, it is smart and in the long run saves us money as it helps people recover so they may contribute to society. And it helps families remain united or reunite.

If we can spend trillions on matters beyond our borders, we should not be mean-spirited and self-destructive with our own citizens. Plus, it complies with the law, especially those state and federal Constitutions some of us are fond of saying we revere.

Stock in Trade

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Abraham Lincoln who was a storekeeper before he was a lawyer is credited with the statement:

“A lawyer’s time and advice is his stock in trade.”

But if an attorney becomes a judge what is her/his stock in trade? For what do we pay our judges? It is not their time; judges receive salaries. It is not their advice; judges are not supposed to give advice, only decisions based on the evidence and the law.

And why do we need somebody whose job it is to not give advice, i.e. to keep their personal opinions to themselves and decide cases objectively?

Society has plenty of people whose role it is to suggest and execute policy. County commissioners and council people, mayors, governors and presidents come to mind.

We also have lots of people whose job it is to pass legislation and fund it. State legislatures and Congress have those duties.

Such executive and legislative bodies have not only the right but also the obligation to express opinions and advocate for their positions. We elect these people for those very purposes. We may agree or disagree with our Executive and Legislative bodies as we choose.

But where do we look for objective decisions on important matters? What gives us confidence that issues wrangled over by individuals or such public servants as presidents and senators will be resolved fairly and impartially by that third branch of government, the Judiciary?

Judges have no armies or militia. Judges cannot impose taxes or pass legislation. Why do we even listen to much less comply with a judge’s decision, especially one we disagree with?

When I have taught judges from other countries such as Palestine or Ukraine or Russia they invariably ask me how I get citizens to accept my court judgments and follow them. In many other countries the concept of the Judiciary as a separate, equal and independent branch of government is impossible for the judges themselves to grasp. They are so used to court decisions being based on the political leanings and connections of judges nobody expects an unbiased judgment. America is supposed to be different.

Of course, we are all partisan. If a sitting judge voices a political opinion we agree with, we not only may not mind, we might applaud. Yeah for our side! However, should a judge portray prejudice against persons or positions we support we lose confidence in our legal system. And that is the only stock in trade judges have, i.e., confidence the judge is impartial.

The momentary elation we experience when some judge violates her/his duty and publicly rails for or against a particular person, party or position fades rapidly when we realize the judge is acting from prejudice. This is so because we know that we may have to face a judge who decides cases on whim not law.

There are many reasons America remains the land of the free but one of the most vital reasons is our independent judiciary. Are America’s judges human? Yes. Are they prejudiced? Yes. Is the perception they are going to decide cases without allowing their prejudices to control their view of the evidence important. You know it!