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CounterPunch
October
2, 2002
When the Judge
Says "I Botched It"
Me, Myself, and the Court
by
JOANNE MARINER
Dressed in solemn robes and presiding over a decorous
courtroom, the judge is an impersonal figure. The embodiment
of legal authority, the judge is supposed to be the conduit through
which the law speaks.
Like a piece of Kabuki theater, the judicial
performance is a highly stylized affair. Its setting, the courtroom,
is a significative and instantly recognizable space, and it relies
on a set of props that have been hallowed by centuries of reverential
use.
The justice system's ceremonial trappings
are equally evident in judicial opinions, which adhere to a strict
set of formal conventions. Because the goal of the written opinion
is to make the end result seem inevitable--compelled by the law,
not the vagaries of judicial discretion--the judicial voice tends
naturally toward a sort of authoritative blandness. Subjectivity
is banned, polemic is suspect, and authorial idiosyncrasy is
carefully circumscribed.
There are a few well-known exceptions,
of course--Oliver Wendell Holmes' epigrams, Judge Alex Kozinski's
pop culture references, and Judge Bruce Selya's extravagantly
obscure vocabulary words come to mind--but the generalization
is still a fair one.
So what is a judge to do when his or
her inner human being wants desperately to find expression? A
Massachusetts district judge, in a recent decision, came up with
a novel solution.
"I Botched
It"
The vehicle for this judge's assertion
of personality was the Richard Reid case, better known as the
shoe-bomber prosecution. Reid, a British national, was caught
by vigilant flight attendants last December as he apparently
attempted to blow up a transatlantic airliner using bombs concealed
in his shoes. Facing a variety of federal charges, Reid was being
detained in Boston and represented by a local public defender.
The court's opinion, issued last July
26, begins unremarkably. The specific question at issue is whether
the court's previous order in the case, issued on an emergency
basis, was valid. That order had barred the government from interfering
with Reid's communications with his attorneys, while also mandating
that Reid not be removed from the district without prior permission
of the court. The latter requirement, as the judge was to explain,
reflected the concern that Reid was prime material for trial
before a military commission.
As is customary, the first few pages
of the opinion recite the case's factual background and procedural
history. The language is neutral and impersonal, and it is written
from an objective third person point of view ("the Court"
did this, "the government" did that, and "the
defendant" did something else).
But suddenly, just as the narrative starts
to gain momentum, things go startlingly awry. "The Court"
leaves the scene, and the judge himself--a typically fallible
human, as it turns out--enters.
"I was in the midst of impaneling
a jury," the judge explains, switching to the first person
voice. Informed of an emergency motion made by defendant's counsel
in the Reid case, "I scheduled a prompt hearing that same
afternoon--and botched it."
"A Rather
Nice Ring"
From there, the judge goes on to admit
a series of mistakes. His tone--humble, personal, apologetic,
and, in a hapless sort of way, humorous--is nearly as foreign
to judicial opinion-writing as his willingness to admit error.
(Let me just note that my year spent as a law clerk in no way
prepared me for it.)
At one point, reflecting on his own previous
declarations in the case, he notes that while they had "a
surface plausibility and a rather nice ring, the entire analysis
[was] simply wrong."
From there on, the court's opinion proceeds
to switch back and forth from the first person to the third person
voice, all the while explaining and analyzing the legal questions
at issue. (And, demonstrating a very human tendency that every
author can understand, he even finds an excuse to tout his book,
Reflections of a Trial Judge.)
It is not until quite far into the opinion
that the judge clarifies, in a footnote, the reasoning behind
this seeming display of multiple personalities. In his "note
on style," he explains: "I write personally when revealing
my own human mistakes and adopt 'the Court' usage when--I believe
accurately--delineating the law."
I Respectfully
Dissent
If only it were so easy to separate the
human from the judicial. But all judicial reasoning, no matter
how carefully dressed up in neutral and uniform language, is
personal. The law does not apply itself, and the different judges
who do apply it--with different perspectives on the law, facts,
and context--reach different outcomes.
Indeed, if it were possible to achieve
real uniformity in the judicial thought process, there might
be more room for subjective modes of judicial expression. The
uniformity of the judicial voice, like the judge's robe, is a
disguise, though perhaps a necessary one.
Just as the little old man with the wrinkled
face projects the Voice of Oz, it is the judge's very humanity
that makes him need to hide it.
Joanne Mariner
is a human rights lawyer from New York City.
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October 2,
2002
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