James M. Redwine

Socrates

Undermining the Courts

by Leave a Comment

At 3:30 am on Thursday, April 20, 2023 I was watching cable news anchor Alex Wagner of MSNBC, who was analyzing the controversy involving two conflicting federal court rulings concerning the abortion drug Mifepristone. Wagner pointed out the federal district judge in Texas had been appointed by President Donald Trump. Ms. Wagner did not refer to the federal district judge in the state of Washington having been appointed by President Barack Obama. Wagner opined that these diametrically opposed court holdings and the U.S. Supreme Court’s attempts to reconcile them, “Could undermine the legitimacy of the courts.”

Naturally, Gentle Reader, your first thought is what was I doing watching television at three thirty in the morning and why would I watch MSNBC at any time? As to why I was awake, hey, I’m frequently responding to urges I never had when life was new. As to why MSNBC, I watch the news with my finger on the remote so I can attempt to outmaneuver the commercials. MSNBC happened to have the court story on instead of some offer of products guaranteed to enhance weight loss and other things, so I listened in.

It was Wagner’s views on the court system, not any exposition of Mifepristone, that piqued my attention. She said on national TV what may be a sub rosa thought with many Americans, “Why should we have confidence in the independence and reliability of our federal judges?” Are federal judges acting as Socrates demanded or are they deciding cases politically? Does a federal judge’s ruling depend more on the facts and the law or the judge’s political views and those of the president who appointed them?

In his trial before the Athenian judges, Socrates admonished his judges, “To do justice, not make a present of it.” In other words, a judge’s duty is not to repay his or her appointing politician, but:

“To hear courteously; to answer wisely; to consider soberly; and to decide impartially.”

Americans have for over 200 years supported the right of judges to be a separate and independent branch of our government. However, in our current national environment, many decisions from, especially the U.S. Supreme court, but more and more frequently also from the lower federal courts due to wide-ranging injunctions from one-person federal district judgeships, are seen by many Americans as political pronouncements.

Virtually every national debate about federal judicial decisions begins with a reference to the politics of who appointed the judge or judges and the history of the judge’s political leanings. It may be difficult to recall, but before our current turbulent social environment seldom was it alleged that, as justices Stephen Breyer, Elena Kagan and Sonia Sotomayor said in dissent to the abortion decision of Dobbs vs. Jackson, “Today the proclivities of individuals (Supreme Court Justices) rule.”

When even one third of the members of the U.S. Supreme Court publicly and in print accuse the other two thirds members of deciding cases for political reasons, it sounds an alarm about an independent judiciary. An independent judiciary is essential to maintaining our democracy. As long ago as 1835 Alexis de Tocqueville noted, “In America, practically every political question eventually becomes a judicial one.” De Tocqueville meant that Americans have confidence in the impartiality of our courts so they take their disputes to courts to be resolved.

It would be a shame if now de Tocqueville might have to conclude, “In America, practically every federal judicial question becomes a political one.” Perhaps next week, if I am still awake at 3:30 am, we might further address these volatile issues including some suggested remedies.

Tribal Court

by Leave a Comment

Chief Joseph

After forty years of serving as a judge in the white man’s courts I was recently honored to be asked to serve as a Special Judge by appointment of the Court of Appeals of the Stockbridge-Munsee Community of the Mohican Nation. The appointment of an outside judge was necessary because the case involves questions of tribal membership and the regularly sitting Native American judges for the Tribe had conflicts of interest due to the judges’ personal connections to the issues.

As I had no experience with Native American law, I had to first familiarize myself with the particular Tribe’s particular Constitution, procedural rules and statutes that applied to my assigned case. What I found was the bedrock issues for the Indian judicial system are remarkedly similar to the legal system I learned in law school and sat as a judge in. When I looked closely at tribal law, I came to the same conclusion attorney Abraham Lincoln did. Lincoln said the primary purpose of all courts and lawyers should be to:

“Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker, the lawyer (judge) has a superior opportunity of being a good person.”

If one reads some newspaper editors or listens to cable news anchors, he or she might conclude compromise is anathema to the American body politic’s well-being. Conflict and strife with unyielding single mindedness are the watchwords for national media and federal, and many state, office holders. This way of addressing our personal and national problems seems rather discordant when a majority of Americans apparently believe their preferred law giver said:

“Blessed are the peacemakers, for they will be called the children of God.”
Matthew 5:9

It is ironic that those, many of whom champion Jesus the ultimate practitioner of compromise, so often call for obstinance and conflict. I guess the concept of situational ethics passes them by.

What I discovered in researching tribal law was what legal scholars have known since the days of Socrates: all courts are here to resolve controversies. That is their only charter, not to provide fodder for the gossip mill or entertainment for the afternoon or late-night talk show crowd. Judges, whether in the white man’s legal system or the Indian’s, have one main mission, that is to help people help themselves, if they can, to make peace.

I grew up on an Indian reservation but my experience with the kids I played ball with, fought with and dated was they were just like me. Therefore, I was not surprised Native American courts had the same mission as the one I presided over in the white man’s world. On the other hand, it is comforting to think should I for some reason get caught up in a tribal legal system it will be about the same as the social system I have always known. And I am glad America is finally getting around to recognizing what should have always been the case.

The tribal law I researched reminded me of laws enacted from the times of ancient Rome, ancient Greece and English and French legal philosophers, such as John Locke and Voltaire and American Founding Fathers, such as Thomas Jefferson and James Madison.

Another great philosophical legal leader was Chief Joseph of the Nez Perce (1840-1904). Chief Joseph engaged in peaceful resistance until he was forced to surrender which he did based on certain representations from the white man’s government. Those representations were not honored. However, Chief Joseph upheld his end of the peace agreement and he was greatly admired as a peacemaker.

Chief Joseph’s legal philosophy is remarkedly similar to that of our earlier mentioned judge: Jesus said, “do unto others as you would have them do unto you.”  Chief Joseph said:

“If the white man wants to live in peace with the Indian, he can live in peace. Treat all men alike. Give them the same law.”

As a tribal judge, even if only for one case, I feel quite at home with this court mission statement from Chief Joseph.

Locking Horns

by Leave a Comment

One day I met up with my friend Tim “Turtle” Smith in the parking lot of a golf course. “Hey, come look at what I found yesterday when I was out deer hunting.” I looked in the bed of Turtle’s pickup and saw two sets of deer antlers intertwined. Tim said, “I cut these off the heads of two dead stags. They must have starved to death after their battle for which one would gain the prize doe. I guess it is a metaphor for the old saying, ‘Don’t lose your head over.…’ ” Tim is kind of a colloquial philosopher. We do not know what other stag defaulted to winning the mythical doe, but surely a wiser one was lying in wait.

For some reason my encounter with Turtle came to mind after observing the Presidential Debacle last Tuesday evening. If the goal of a leader is to have his or her constituents adopt and follow a particular vision, when it comes to debating, the leader may want to concentrate on setting out elements of the vision and not fall into the quagmire of ad hominem. President Trump and Former Vice President Biden surely both have a vision for America but they both kept their visions well disguised Tuesday.

Usually in a debate someone is declared the winner. However, in the Presidential Debacle of 29 September 2020 there was no winner but there were three losers: President Trump, Former Vice President Biden and the electorate. We learned what we already knew; the candidates hate one another and the national news media loves only itself. Where was what Socrates called for over two thousand years ago when he cautioned, “The unexamined life is not worth living”? And Joseph Campbell’s only unforgiveable sin, that is “to be unaware”, was committed by both candidates and the moderator repeatedly.

If Americans are the prize and leadership is the goal, I suggest our presidential candidates each eschew both mudslinging and mud wrestling and spend their time and ours setting forth their plans for our future and explaining cogently how their plan is superior to their opponent’s. We can decide for ourselves if we like a candidate. What we need is knowledge about which aspiring leader is truly inspiring and not merely exasperating. Of course, if Donnie and Joey continue to act like scuffling school boys, perhaps we will see both of their denouements via the ballot box and a contested election. Then someone else may end up with the prize as declared by a handful of unelected judges.

Fast Radio Bursts

by Leave a Comment

Associate Professor Jean-Pierre Macquart of Curtin University in Bentley (Perth), Australia is the principal investigator of the CRAFT project that studies Fast Radio Bursts from throughout the universe. These phenomena became a subject of intense interest in 2007. The cause of these FRB’s is still being researched but in June, 2019 the source was determined to be a galaxy 3.4 billion light years from our own Milky Way Galaxy, practically next door.

The theories of the origins of FRB’s are many. However, my favorite guess is that they originate from a highly advanced civilization that is reaching out for contact with other similarly positioned beings. Of course, I still hold out some hope Santa Claus will bring me a pony.

Regardless, if there are intelligent creatures sending out probes it may be because they have been monitoring Earth’s progress for years and are wondering how we are currently doing. If these beings, I’ll just call them Busters for convenience, have been observing us for the last 200,000 years or so they were probably pretty bored until around 5,000 years ago when the “ancient” Chinese, Egyptians, Assyrians and Babylonians came up with writing and pyramids. The Busters may have followed the careers of Imhotep or Cheops as mankind leapt from hunter/gatherers to farming and architecture. Today the descendants of these great civilizations may get less interest from the Busters, especially as the societies began to engage in efforts to control their neighbors with clubs.

As humans migrated from Africa to the Mediterranean area our curious observers may have followed the writings of Socrates and the Greek culture until the Roman’s discovered the short sword. And while we do not know the length of the year the Busters live with, they probably have figured out ours and our time lines. Therefore, the Busters may have followed the rise and fall of Rome including the decline from such as Justinian to the likes of Mussolini. The Earth at war from 1914 to 2020 may have caused the Busters pause.

One curious aspect of the Fast Radio Bursts is how they were discovered by humans about 2007 and their volume has waxed and waned over the next 13 years. It is as if the Busters may be concerned or confused about recent events. Perhaps they are perplexed by our world’s own fast radio television bursts as current events may appear from outer space to be pure chaos.

For example, I can imagine a cable news Buster asking, “Where did Socrates go and what the devil is a Hannity?”

Judicial Lodestones & Amulets

by Leave a Comment

The National Judicial College teaches thousands of judges. As a faculty member for 22 years I have learned a great deal more than I have taught. The student judges’ collective experience and wisdom have often been what I have looked to when I was not sure where else to turn with a difficult situation.

For instance, when I feel myself getting angry at someone in front of me, say a recalcitrant spouse in a divorce, an unfeeling defendant in a child molesting case or an attorney whose style is of the button-pushing genre, I remind myself of what Socrates said:

“A judge’s duty is to do justice, not make a present of it.”

In other words, the power I can wield is not Jim Redwine’s power; it belongs to the people.

And when a problem such as lack of resources or a need for courthouse renovation becomes so severe people are denied justice I remind myself of what Robert Kennedy said:

“Some look at things and ask ‘Why?’, I dream of what things could be and ask, ‘Why not?’”

Or more prosaically, my quote the National Judicial College just published in their magazine, Case In Point, page 35:

“It’s better to go ahead and do good than to fear the lack of authority.”

The NJC collected such guidelines from 50 judges from all over America for the most recent edition. I find several of their thoughts helpful both for judges and those who may need a judge. The college asked us for brief statements of, “What we wish we had known before we became judges”. I will set forth a few.

“That I was giving up my individual identity. Your personal opinions and views are restricted in context at all times. Pretty soon you can begin to forget who you are.”
Judge Jan Satterfield, 13th district Court, KS

“The job doesn’t pay enough to be a jerk! Mistakes in applying law or reviewing facts are expected. Arrogance from the bench is inexcusable. Litigants will often decide how all judges act from their contact with you. Don’t get us a bad review.”
Judge Gregory D. Smith, Municipal Court, TN

“That folks would really believe that my court would be just like Judge Judy’s show.”
Judge Cynthia L. Brewer, Chancery Court, MS

“How dangerous it is to walk down stairs in a robe!”
Judge Stephen D. Hill, Kansas Court of Appeals

Perhaps we can look at some other gems of judicial learning later.

The Harder Right

by Leave a Comment

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.

%d bloggers like this: