James M. Redwine

Bobby Kennedy

The American Mantra

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From “The Veranda” @ JPeg Osage Ranch. Photo by Peg Redwine

Peg and I got back to “The Osage”, Osage County, Oklahoma, USA on 26 February 2023 after a trip of two days from the one-time Soviet Union Republic of Georgia that is bordered by Russia and Turkey and lies directly across the Black Sea from Ukraine, that, also, was a former member of the Soviet Union. Georgia has a population of about four million, almost every one of whom we met yearned to come to the USA and every one of whom was insatiably curious about, “What makes America, America.” The Georgian judges we worked with from June 2022 to April 2023 unfailingly asked me “How do American judges do …?”

I was sent to Georgia by the United States Agency for International Development, the American Bar Association and the East-West Management Institute because I have been on the faculty of the National Judicial College (NJC) since 1995 teaching other judges from the United States and several foreign countries. I have designed and taught courses on judging to judges, lawyers and court administrators from Palestine (1996), in Ukraine (1999-2000), in Russia (2003) and in Georgia (2022-2023) as well as judges from other countries when they attend courses at the NJC.

My unsurprising conclusion from ten years of practicing law and forty-three years of judging is lawyers and judges and the citizens who must look to us for justice are pretty much the same everywhere. Most people are good most of the time, most people are bad some of the time and everyone everywhere wants to know why the USA is a beacon to the world. That is what I have been asked to report on during a series of debriefings concerning our mission to Georgia.

In other words, even we Americans spend a great deal of time cogitating on what makes American judges different from foreign judges. I have certainly invested a lot of years in this quest and today during a Zoom meeting with experts from Georgia and America I plan to offer my analysis. For such a complex and important subject my thoughts synthesize to a rather pedestrian mantra:

With all the judiciaries from other countries it has been my pleasure and privilege to know and work with, my perception is they believe that unless there is a specific, written law that authorizes them to take a particular action, even if they know it is the right and just thing to do, they cannot ethically and legally do so and, therefore, they refuse to act.

Whereas judges from the United States believe that unless there is a specific, written law that prohibits the judge from taking a bold, just and fair action in a case, the judge will take the action even if there is no law that specifically allows it.

This mantra is deep within America’s judicial psyche. Some, when they disagree with a judge’s imaginative decision, might criticize it as “judicial activism”. Of course, when they agree with the decision, they call it “wisdom”. But if one wants to define the bright-line difference in what other countries yearn for and what America’s judges are admired for it is just this, Judicial Independence!

This general philosophy falls within what that great American dreamer Robert Kennedy called his mantra:

“Some people see things as they are and ask, Why? I see things as they should be and ask, Why not?”

So, after 8 months of responding to my Georgian friends’ incessant curiosity of what makes America and its legal system the hope of many other countries, I point out it is not for nothing the most recognized symbol of America is The Statue of LIBERTY (that is, the freedom to do the right thing)!

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.

What’s the Big Deal?

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A ninety-five year old guy died of cancer in an Ohio hospital a few days ago. Seems like a rather expected thing. So why all the fuss? I guess you almost have to have gone through those farcical exercises of hiding under your school desk to understand.

Did we really believe such actions would save us from atomic bombs? Maybe so, but it is hard to relate now to those Cold War fears and lack of hope.

After we lost a quarter of a million military personnel in World War II and fifty-eight thousand more in Korea America was about warred out. But the Soviet Union and “Red” China still loomed over us.

When Yuri Gagarin orbited Earth in 1957 we did not have a space program that could get off the ground. Then in April of 1961 our C.I.A. stumbled its way into the disastrous Cuban Bay of Pigs Invasion. This was followed by the closest the world has come to blowing ourselves up during the 1962 Cuban Missile Crisis.

America was tired, back on our heels and scared. We were in the crosshairs of enemies on several sides and at a crossroads of ennui. What we needed was what the Greeks needed during the Trojan War. We needed an Achilles to inspire us, a hero whose confidence, ability and bravery could take our minds off of our fear and fire us with a will to win. Enter John Glenn.

This Midwestern, small town, normal sized unassuming product of the Great Depression, World War II, Korea and the Cold War climbed aboard an exploding cannon and rode it around the Earth less than one year after Gagarin thrilled the world and sent us under our desks.

To those of us who lived through the Cold War John Glenn represented the ability to fight back. So when Senator Glenn appeared with Presidential candidate Bobby Kennedy at the Indiana University Auditorium on April 24, 1968, we students who packed the place to boo Kennedy for running against Gene McCarthy turned into hero worshipers when John Glenn appeared.

That’s what a true hero brings out, gratitude and respect. If John Glenn thought Bobby was okay, then he was okay with us. Some might say we were fickle; I say we were converts.

A national hero is an extremely rare person. Adrian Peterson is a great football player and Madonna is a great entertainer, but to call them heroes is to miscomprehend the term. As commentator Charles Krauthammer said, we may have had only two true national heroes in the last one hundred years, Charles Lindbergh and John Glenn. That’s why the old guy’s passing is such a big deal.