James M. Redwine

Judicial

Lemonade

by Leave a Comment

Photo by Peg Redwine

Liberals are upset that the leak from the U.S. Supreme Court may signal that the case of Roe v. Wade, 410 U.S. 113 (1973), may be overturned or, as is more likely, modified. Conservatives are upset there was a leak from the Supreme Court that may allow public pressure from Liberals to influence the Court to not modify Roe’s holdings.

Neither Roe v. Wade nor the case that followed it, Planned Parenthood v. Casey, 505 U.S. 833 (1992), is before the Supreme Court for decision. They could be referred to and overturned or reaffirmed by the Court within its decision of the pending case of Dobbs v. Jackson, No. 19-1392 that will be decided in 2022. As there has not yet been an official decision in Dobbs, it does not have an official public citation.

Liberals celebrate the leak and abhor the substance of the draft opinion authored by conservative justice Samuel Alito. Conservatives celebrate the preliminary opinion and abhor the leak. Both Liberals and Conservatives find reasons to attack the institution of the Third Branch of our democracy as they clamor for it to be fundamentally changed. Liberals want to “pack” the Court so as to dilute its current conservative majority. Conservatives want a vigorous investigation into the leak with the hope the public will be outraged if some left-leaning leaker is identified as the culprit.

I agree with Shakespeare’s character, Mercutio, in Act III, scene 1 of Romeo and Juliet when his imminent death results due to an irrational feud between the families of the lovers:

“A plague on both your houses!”

However, if we are to be constantly accosted by railings of both Liberals and Conservatives about the need for modifications in the United States Supreme Court, let us consider making some constructive changes. After all, no rational American wants to do away with the Court. We all know one of the main reasons our country has outlived every other constitutional democracy on earth is our equally competing three branches of government. We must support the maintenance of all three, including the Judicial Branch.

When it comes to the Judicial Branch, political commentators often assert it is non-political and must remain so. They are correct if they mean the actual decisions of the Court. No judge should allow political influence to affect his or her decision. But when it comes to maintaining the public’s confidence in the non-political basis of a judge’s decision, it is the processes of judicial selection and retention that are most important.

One reason the public believes the members of the Supreme Court are politically motivated is because the public has no influence on how the justices get their life-time jobs nor any realistic way to remove them. Presidents are elected every four years with the possibility of only one more four-year term. Representatives are elected every two years and Senators are elected every six years. The public has a right to remove them. Supreme Court justices are nominated by one person, the President, as the President sees fit. The public’s influence is greatly attenuated, in fact, virtually non-existent.

At a minimum, the public should have the assurance that many of the most vital issues of their lives will not be at the mercy of the same five-member majority of the Supreme Court for an unknown period. Perhaps our current national furor could be a catalyst to, at least, set term limits for the Supreme Court justices. A ten-year term is what I suggest but the public, through its federal Legislature, should decide such issues. It is fair and in our own best interest in getting well-qualified justices who are willing to serve, to grant the retired justices generous life-time pensions once their term is up. But in return, the retired justices would agree to neither seek nor accept another judicial position ever again.

The possibility of term limits for the Supreme Court might help assuage the current calls by Liberals and Conservatives to radically control what must remain one of our three independent branches of government. Term limits is a better solution than a continuing loss of public confidence in and, perhaps, a loss of independence for, our Supreme Court. In other words, we do not want to make the same types of mistakes as did Romeo and Juliet in their final Act. We do not need to continue on our road toward possible suicide for our democracy.

p.s. Gentle Reader, Peg and I have two upcoming book signings for our new historical novel, Unanimous for Murder, that is a sequel to JUDGE LYNCH!. The first is May 17, 2022 from 10 a.m. to 4 p.m. at the Osage County Historical Society Museum at 700 Lynn Avenue in Pawhuska, Oklahoma. The second is May 20, 2022 at Capers Emporium, 602 Main Street, New Harmony, Indiana from 2 p.m. to 5 p.m. Please drop by and say hello!

When Mercy Seasons Justice

by Leave a Comment

Photo by Peg Redwine

For the past two weeks as a member of the National Judicial College’s faculty I have helped to present an online continuing education course to judges from several states. A significant portion of the course involved an examination of America’s penal system.

In general, the continuum of criminal justice runs from Deuteronomy, 10:21, to Shakespeare’s The Merchant of Venice, Act 4, scene 1. Deuteronomy provides:

“Thine eye shall not pity. It shall be life for life, eye for eye, tooth for tooth, hand for hand, foot for foot.”

But Shakespeare’s Portia pleads with Shylock to show mercy:

“The quality of mercy is not strained. It droppeth as the gentle rain from heaven upon the place beneath. It is twice blest: It blesseth him that gives and him that takes.

….

It is an attribute to God Himself; And earthly power doth then show likest God’s when mercy seasons justice.”

Gentle Reader, you have already discerned the Devil is in the vast distance of details between these two extremes. How should we as judges of our fellow humans devise and apply a sentence that is just for the individual in court and society in general?

The State of Indiana’s Constitution provides a foundational mandate for judges when it comes to designing and imposing sentences that both follow the law and are just; just to the defendant, to any victims and to the general public. Article I, section 18 demands that as to Indiana’s legal system:

“The penal code shall be founded on the principles of reformation, and not on vindictive justice.”

For judges to be “Strict Constructionists” and conservative followers of the Indiana charter, vengeance may play no role while reformation must be the goal. One of my fellow National Judicial College faculty mates was Judge Timothy Brauer from Oklahoma. The Oklahoma Constitution provides:

“The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property or reputation, and right and justice shall be administered without sale, denial, delay or prejudice.”

Article II, Bill of Rights,

Section II-6.

As a member in good standing of both the Indiana and Oklahoma Bars, I am bound by the Constitutions of both states. Oklahoma’s reference to justice not being for sale reminds of Socrates’ admonition to his judges in the Athenian Senate:

“A judge’s duty is not to make a present of justice, but to give judgment; and judges are sworn to judge according to the laws, and not according to their own good or pleasure.”

Plato’s Apology of Socrates.

The wisdom of basing a system of justice on mercy instead of vengeance has been recognized for thousands of years. Jesus knew society prospered when the Golden Rule and not rule by gold was the standard. And WWII war correspondent Ernie Pyle reminded all of us, especially judges:

“When you have lived with the unnatural mass cruelty that mankind is capable of inflicting on itself, you find yourself dispossessed of the faculty for blaming one poor man for the triviality of his faults.”

As judges should learn, all they have to do to do their duty in imposing sentences is to strictly follow the applicable law which includes the divine judicial quality of not straining at mercy.

Photo by Peg Redwine

To Your Health (VÁSHE ZDARÓVYE)

by 2 Comments

At Coffee Bean, Moscow, 2003, picture taken by Peg Redwine

Whomever President Biden nominates to the U.S. Supreme Court, apparently Ketanji Brown Jackson, if confirmed by the Senate, will serve for life. If you have read Gavel Gamut recently you may recall I have called for a ten-year term limit for all federal judges. Although our federal judges are not of the same ilk as Russia’s President Vladimir Putin, his twenty-two years in office with the opportunity to run for another six-year term in 2024 might help illustrate why term limits are worth considering.

Russia’s Constitution gives Putin much more autonomous power than our President or any of our nine Supreme Court justices. However, as almost all things in life, political power is a matter of degree. The photograph that Peg took of me reading a Russian newspaper in a Moscow coffee shop in 2003 contains a headline showing, in English, that Putin was announcing his intention to run for re-election. He was first elected president in 1999.

From our cave man days we have recognized that power corrupts and that the more and the longer a person has power the more he or she is tempted to abuse it. Putin has abused his immense power by invading Ukraine. Of course, he asserts his actions are required by the allegedly genocidal Ukrainian officials who are supposedly suppressing Ukrainian citizens, many of whom are culturally connected to Russia. Stalin and Hitler would have been proud of such an analysis; their terms of office should have been limited to zero.

When the National Judicial College sent me to Russia in 2003 to teach Russian judges how we in America conduct jury trials, Peg and I spent a few days in Moscow and a little less than a week in Volgograd, the old Stalingrad. We met and enjoyed many Russian citizens and often reflected on how lucky we were to have been born in America. We saw groups of unemployed young men wandering aimlessly along Tverskaya Street, Moscow’s main thoroughfare, carrying multiple bottles of beer and wine in their arms. When we attended the seminar in Volgograd, alcohol was more prevalent than educational materials and American rock and roll music was more popular than questions about how to afford civil rights via jury trials. The Russians appeared to be eager to escape the harsh realities of the Russian economy. Perhaps that is Putin’s true motivation, to take the minds of everyday Russian citizens off their harsh existence.

How ironic it is that Russia has invaded Ukraine when the lives of the Ukrainians are as drear as those of the Russians. Peg and I have often noted that nobody who was sober did much smiling in either country. Perhaps the Russian government is wanting to reprise its former use of the fertile fields of Ukraine in the feeding of the Russian populace. Once Ukraine was Russia’s bread basket. Now it barely feeds itself. But Russia may hold out hope for greener pastures anyway.

Many pundits are opining that Putin’s real goal is to be the new tsar of a reconstituted Soviet Union. Maybe so, but if he wants to win the hearts and minds of the Ukrainian people, and perhaps those in Latvia, Estonia, Belarus, Moldova and even those of his own Russian citizens, he ought to refer to the Bible’s Book of Isaiah, Chapter 2, verse 4 and beat the Russian swords into plowshares. What the Ukrainians need, and the Russians too, is not more armaments but more economic development, not more soldiers but more farmers and store clerks.

That is an approach that the NATO countries should consider. For the trillions of dollars in soon to be lost military “aid” from America, Germany, France, Italy, Great Britain and others so willingly lavished upon Ukraine, we could “sanction” Putin with economic benefits to Ukraine and other at-risk countries on Russia’s borders. Yes, such an approach might make those countries more ripe for conquest but, if we use the same type of diplomacy we so successfully applied in the Marshall Plan, we might win friends instead of guaranteeing ourselves a nuclear powered enemy with terrible resolve. Perhaps we should ♫ study war no more ♫ and encourage Putin to do the same with honey, not vinegar. After all, the vast amount of vinegar we are wasting our precious assets on is just being used to make everyone involved more bitter.

Welcome to Ukraine

by 2 Comments

As I retrieved my luggage at Boryspil Airport outside Kyev, Ukraine the last week of December in 1999 I was surrounded by a jostling mob of drably dressed male cab drivers shouting for my attention in an amalgam of Ukrainian and Russian. I chose the aesthetically thin one who said “Best” in English. He loaded my large golfclub caddy, my suitcase and my backpack into his precarious looking tiny Trabant vehicle with a cracked front windshield. Once we left the airport for Kyev I understood why the passenger side window was down; the roller was broken.

It was dark. It was bitterly cold. It was snowing. The trip to the “four-star” Hotel Dnipro in downtown Kyev took about half an hour and the driver did not want Ukrainian hryvnia (pronounced grievna) but American dollars. I later learned he probably would have been ecstatic with $5.00, but I paid him $30.00. He insisted on pulling my heavy golfclub caddy into the lobby. The caddy was filled with lesson plans and Walmart trinkets for the Ukrainian judges that the National Judicial College had sent me there to teach. After I starting teaching classes, I found the Ukrainian judges were as thrilled to receive the plastic Harry Potter toys I had brought to give away as prizes as we Americans might have been to get expensive sports paraphernalia from our favorite team.

I checked in, gave up my passport with a twinge of indecision, and was directed to my room on the seventh floor. I was not given a key but was simply told I would be in room 702. When I got off the elevator, I found a woman wearing a large shawl sitting at a plain wooden desk in the cold hallway. I used my fingers to show her my room number and she opened an unlocked drawer containing the keys to all the rooms. She did not ask for I.D. She just handed me my key. I kept it in my possession for the whole two weeks I was there.

The door to my room reminded me of the pasteboard type construction used for cheap, portable closets in the 1950’s. The room had a single metal bed, a small metal table with two metal folding chairs and a window looking out onto an alley. There was a metal dowel rod, but no hangers, for hanging clothes and the restroom had a commode, a sink and a tiny shower that I soon found spurted out green water. I spent two weeks on bottled water and a lot of soap.

The room was about four paces long and three paces wide. Once I moved my luggage in, I could barely turn around. I had hardly got in my room when the telephone rang and a female voice said, “Anna”. I responded, “No, you have the wrong room.” The woman said again, “Anna” then she added in a Ukrainian accent, “You want?” I was a little slow but finally got it. I said thank you but, “No”. The cab ride and Anna were just the beginning of my introduction to the Ukrainian economy.

After I kind of unpacked I decided to seek out a sandwich and a beer at the snack bar on the second floor. The bar was near the doors to a small casino where two uniformed dealers, one male one female, were behind black-jack tables. I was the only potential customer. I had the uncomfortable feeling I was the only game in town so I slowly backed away from the casino and went to the bar.

The bar was about twice the size of my room with a semi-circular formica topped bar and five stools like those one might find at a small-town drugstore counter. There were four small metal tables with armless metal chairs. When I entered the bar there was a male bartender who indicated in Ukrainian and with gestures they had no food, only potato chips. There was a large man sitting on one of the stools and at one of the tables a thin woman, everyone was thin, sitting alone holding an unlit cigarette.

I ordered a bottle of beer and received one with an unreadable label. I took the bag of chips and the beer to an empty table and sat down. Almost immediately the woman moved to my table and sat near to me. She looked to be about thirty years old. She asked in English if I would buy her a beer. I was surprised at her excellent English and told her so. I did not respond to her request. She said she could tell I was American as she had once lived in New Jersey while going to college. After a few minutes of talking, she managed to convey to me what her second job was.

She said she was a medical doctor who was employed by the government but she had not received any pay for three months. After I explained I was not interested in her second job she just sort of smiled and pointed to the large man at the bar. She said, “That is my husband.” She said their only child, who was sixteen, was home alone. She said they could not afford more children, but wanted more. Then she began wiping at her eyes. I shook her husband’s hand and left.

The next day I went for a walk to the center of Kyev and found Maidan Nezalezhnosti (Independence Square). Two shabbily dressed men were staring at the non-operating fountain. In a rusty dented metal bucket, they had a few worn tools. It was very cold as they made a few half-hearted attempts to work on the fountain. Then one of them just threw down the bucket and they walked away. I assumed it was a real-life lesson in the old Russian/Ukrainian/socialist aphorism, “The government pretends to pay us and we pretend to work.”

As I walked the main streets, occasionally but not often, an automobile would be flagged over by a uniformed police officer. The exchange of demanded money was not even attempted to be hidden.

The next two weeks as I taught approximately two hundred Ukrainian judges about America’s judicial system, I was told the government was supposed to pay each judge the equivalent of $350 dollars per month and provide living quarters for each judge’s family. However, the judges told me they were paid sporadically and had to share an apartment with other judges.

I did learn that many, but not all, of the Ukrainian judges despised Russia and that it was wise on my part to call the capital Kyev (Kāev), not Kiev (Kēev) and when I said goodbye, I should use the Ukrainian “do pobachennya” not the Russian “do svidaniya”.

I do not know how much American judicial knowledge I imparted to the Ukrainian judges, but about the only “honest” economy I did find in Kyev were the black markets set up in the courtyards of the huge churches. I frequented them several times and bought about $1,500 worth of marvelous local items such as Ukraine’s delicately painted eggs. I filled my then emptied golfclub caddy with numerous wonderful mementos for the trip home.

As I was preparing to leave Ukraine for the U.S. via the airport, the uniformed customs officer asked me if I had anything to declare. I at first answered, “Yes”, and pointed to my golfclub caddy. The customs official looked me in the eye and she said again, “Do you have anything to declare?” I said, “No”, and brought the souvenirs home while leaving my American dollars in Ukraine.

I liked the Ukrainian people very much but the living there is hard. I hope Russia does not invade, but if it does, I hope the Russians bring food and jobs and not just more misery. The Ukrainians have it tough enough already.

Political Winds Should Shift

by 1 Comment

President Biden has promised to nominate an African American woman to replace retiring Associate Supreme Court Justice Stephen Breyer. The U.S. Supreme Court is generally accepted as having a liberal wing: Breyer, Sonia Sotomayor and Elena Kagan; and a conservative wing, Clarence Thomas, Amy Coney Barrett, Samuel Alito and Neil Gorsuch. Chief Justice John Roberts and Brett Kavanaugh vacillate but tend toward the conservative side.

The liberals were nominated by liberal Democrat presidents and the conservatives and semi-conservatives were nominated by conservative Republican presidents. Each American president was elected by majority popular vote and the Electoral College. The philosophies and political positions of each president were well known to the electorate beforehand via contested campaigns. Most voters are aware the members of the Supreme Court, and all other federal judges, are nominated by whoever the president in office is whenever there is a vacancy on a federal court or when a newly created court needs a judge.

But whereas our presidents, due to the 22nd Amendment to the Constitution, may serve only two, four-year terms, Article III section one of the Constitution provides federal judges … “[s]hall hold office during good behavior.” Although it has never been tested, this provision has normally been viewed as providing life-time tenure for federal judges. And since the U.S. Supreme Court under the guidance of Chief Justice John Marshall in 1803 took for itself the power to determine what our Constitution means, if the issue arises the members of the Supreme Court will themselves decide if they should have life-time jobs. See Marbury vs. Madison (1803), 5 U.S. 137.

Therefore, the Constitution might have to be amended to set term limits for federal judges. However, we have amended our founding document twenty-seven times already so we could do so again. An amendment takes a vote by 2/3 of each body of Congress and ratification by 3/4 of the states. That is how women finally got the right to vote and we all got numerous other rights such as Freedom of Speech.

The debate over whether Supreme Court justices are political is vacuous. They are chosen via a political process. They represent a third branch of our political system. We casually identify the justices as liberals or conservative or swing votes. The Supreme Court is a political creation and remains a political part of our democracy, by design. The issue we should be discussing is what is good for America and the answer is limited terms for federal judges. If a president can be elected because of her or his policies then replaced no later than eight years later by someone with different views and a different background, so should courts have their particular perspectives and prejudices evolve every few years. We should not have to wait for Mother Nature to get new and diverse views from justices and other federal judges.

Judges, just like every other human, have prejudices and political leanings. That is not only to be expected but should be celebrated in our democracy. The fact, and it is a fact, that every judge brings her or his background to the Bench should not be news. However, America needs to protect itself from entrenched partisan views being cast in biological stone. A ten-year term for all federal judges is 25% longer than a president’s maximum allotment. Ten years is plenty and if we provide a life-time pension for ex-judges as is already set out in 28 U.S. Code §294 we should have no problem getting qualified judges to serve.

A Limited Tenure

by Leave a Comment

President Biden has announced his intention to nominate an African American woman for the Senate to advise and consent for service on the United States Supreme Court. At the risk of being embroiled in a Whoopi Goldberg “Jewish is not a race issue type of discussion”, I suggest neither race nor gender is the issue for whomever is nominated.  Politics is always what membership on the Supreme Court is about.

From the highly political John Marshall (years on Court 1801-1835) to the highly political Ruth Bader Ginsberg (years on Court 1998-2020) the justices of the U.S. Supreme Court have often worn their politics on the sleeves of their robes. Marshall was nominated by President John Adams. Ginsberg was nominated by President Bill Clinton. Americans who agreed with Adams’ political positions generally agreed with Marshall’s decisions and those who leaned in Clinton’s policy directions championed Ginsberg’s. We should not be surprised if a president nominates someone whose political tendencies match the president’s. It is not a justice’s race or gender that matters; it is their philosophies.

Sometimes when a president, liberal or conservative, chooses a justice, that justice turns out on the opposite end from the president’s philosophy. President Eisenhower, a conservative, chose Earl Warren (years on Court 1953-1969) who led a liberal revolution from his position as Chief Justice. And President George H.W. Bush nominated the African American Clarence Thomas to the Bench; Black Clarence Thomas may be to the right of former slave owner Roger Brooke Taney (years on Court 1836-1864) who decided the Dred Scott case. Although it is not likely Thomas would have agreed with that particular decision.

Supreme Court justices are just like the rest of us. We carry our beliefs and prejudices throughout our lives. They change from time to time and sometimes we can overcome them. But the U.S. Supreme Court is just another political branch of our three-branch political democracy. Politicians are placed on the Court by politicians that we elect. As Plato might have said, “Only the naïve believe otherwise.”

Instead of our long-time national self-delusion that the Supreme Court is not a political force, we should acknowledge that the justices are just humans and accept reality. The best we can hope for is term limits instead of a life-time appointment. I suggest one ten-year term would be about right.