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  • Should Law Yield to a Judge’s Personal Beliefs?

    Posted by David Foster on April 14th, 2018 (All posts by )

    Linda Greenhouse, writing about the late federal judge Stephen Reinhardt, also mentions Supreme Court justice William Brennan, and says “Doctrinal purity mattered less to him than extracting even the most gossamer claim to a favorable result.” She evidently sees this as a good thing.

    I’m reminded of something written by Sebastian Haffner, who at the time of the Nazi takeover of Germany was a young lawyer working at the Prussian Supreme Court, the Kammergericht:

    It was strange to sit in the Kammergericht again, the same courtroom, the same seats, acting as if nothing had happened. The same ushers stood at the doors and ensured, as ever, that the dignity of the court was not disturbed. Even the judges were for the most part the same people. Of course, the Jewish judge was no longer there. He had not even been dismissed. He was an old gentleman and had served under the Kaiser, so he had been moved to an administrative position at some Amtsgericht (lower court). His position on the senate was taken by an open-faced, blond young Amtsgerichtsrat, with glowing cheeks, who did not seem to belong among the grave Kammergerichtsrats…It was whispered that in private the newcomer was something high up in the SS.

    The new judge didn’t seem to know much about law, but asserted his points in a “fresh, confident voice.”

    We Refendars, who had just passed our exams, exchanged looks while he expounded. At last the president of the senate remarked with perfect politeness, ‘Colleague, could it be that you have overlooked paragraph 816 of the Civil Code?’ At which the new high court judge looked embarrassed…leafed through his copy of the code and then admitted lightly, ‘Oh, yes. Well, then it’s just the other way around.’ Those were the triumphs of the older law.

    There were, however, other cases–cases in which the newcomer did not back down…stating that here the paragraph of the law must yield precedence; he would instruct his co-judges that the meaning was more important than the letter of the law…Then, with the gesture of a romantic stage hero, he would insist on some untenable decision. It was piteous to observe the faces of the older Kammergerichtsrats as this went on. They looked at their notes with an expression of indescribable dejection, while their fingers nervously twisted a paper-clip or a piece of blotting paper. They were used to failing candidates for the Assessor examination for spouting the kind of nonsense that was now being presented as the pinnacle of wisdom; but now this nonsense was backed by the full power of the state, by the threat of dismissal for lack of national reliability, loss of livelihood, the concentration camp…They begged for a little understanding for the Civil Code and tried to save what they could.

    “The meaning was more important than the letter of the law”…Linda Greenhouse’s approving gloss on Brennan’s judicial strategy is in my view uncomfortably close to the methodology of this newly-assigned Kammergerichtrat. I am not saying, of course, that Greenhouse is a Nazi; I am, however, saying that the judicial interpretation approach that she prefers is highly dangerous.

    (I discussed Haffner’s experiences at the Kammergericht, and their relevance to American today, in 2013 at Chicago Boyz, where an interesting comment thread developed)

    Also highly dangerous: the attitudes and behavior of those CUNY law students…law students, mind you…who recently tried to shout down a talk being given by law professor Josh Blackman. See also Blackman’s own article about his experience at CUNY.

    The mainstream of the Democratic Party and its supporting media has gone very far in the directions of legislation by the judiciary, and is moving rapidly toward the approval of politics by mob action. The prospect of Democratic control of Congress and/or the Presidency…even of Democratic dominance following a crippling of the Trump presidency…should be absolutely terrifying to all who value American institutions.

    Haffner’s memoir is an important and well-written document; I reviewed it here.

    (The above was also posted at Ricochet, in slightly different form; so far, it is only on the Member feed)


    15 Responses to “Should Law Yield to a Judge’s Personal Beliefs?”

    1. Brian Says:

      “The mainstream of the Democratic Party and its supporting media has gone very far in the directions of legislation by the judiciary”
      Old news. They’ve done so for 50+ years. The “one person one vote” monstrosity used a 100 year old amendment to throw out 200 years of tradition, with the explicit goal of favoring urban/liberal voters over rural/conservative voters, doing damage to the nation that is irreversible. And it seems possible in a case involving Wisconsin districts that the Supreme Court is going to require gerrymandering in order to further destroy non-urban interests from having a chance at political power.

    2. Mike K Says:

      It makes me think of the Thomas Jefferson quote, which was regarding slavery, that “I tremble for my country when I reflect that God is just.”

      The political left is drifting toward Fascism in its quest for perfect results rather than perfect, or even good, processes.

    3. David Foster Says:

      “The political left is drifting toward Fascism in its quest for perfect results rather than perfect, or even good, processes.”

      Many of them do not understand why processes are even important. In Robert Bolt’s play ‘A Man for All Seasons’, the following exchange takes place:

      William Roper: So, now you give the Devil the benefit of law!

      Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

      William Roper: Yes, I’d cut down every law in England to do that!

      Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

    4. Mike K Says:

      A couple of American judges have given me some hope, although it is weak.

      One is Judge Gloria Navarro who, even though an Obama appointee, dismissed with prejudice the Bundy case for flagrant prosecutorial misconduct.

      Still, one man was murdered by the FBI or the Oregon police.

      She did us all proud.

      There is still a wrongful death lawsuit by the widow.

      The widow of LaVoy Finicum filed a wrongful death suit against several government employees and others on Jan. 26, exactly two years after her husband was shot and died.

      Click here to see the lawsuit.

      The defendants will have 45 days to respond to the suit, said Jeanette Finicum’s attorney.

      Morgan Philpot of Utah, the attorney who represented Ammon Bundy when he was found not guilty of all charges relating to the Oregon protest, is Finicum’s lead attorney.

      I saw a video of the shooting and it looked like murder to me. This is Ruby Ridge II.

      The other judge, of course, is Emmett Sullivan who excoriated federal prosecutors for flagrant misconduct.

      A federal judge dismissed the ethics conviction of former Senator Ted Stevens of Alaska on Tuesday after taking the extraordinary step of naming a special prosecutor to investigate whether the government lawyers who ran the Stevens case should themselves be prosecuted for criminal wrongdoing.

      Judge Emmet G. Sullivan, speaking in a slow and deliberate manner that failed to conceal his anger, said that in 25 years on the bench, he had “never seen mishandling and misconduct like what I have seen” by the Justice Department prosecutors who tried the Stevens case.

      Judge Sullivan’s lacerating 14-minute speech, focusing on disclosures that prosecutors had improperly withheld evidence in the case, virtually guaranteed reverberations beyond the morning’s dismissal of the verdict that helped end Mr. Stevens’s Senate career.

      Of course they were not punished because it was April 2009 and Obama was president.

    5. Subotai Bahadur Says:

      The Left lusts for rule by the almighty power of the State, so that the threat of deadly force can substitute for the rule of law to ensure the “correct” result. The problem is that the almighty power of the state a) may not always be almighty, and b) they may not always control the state. If there is no law, no due process, and no legitimacy granted by a social contract, then in the end killing all those who oppose you is the only way remaining.

      They are making the new rules. They do not expect to live and die by them. They are wrong in this and many things.

    6. PenGun Says:

      LOL. I just watched Judge Dredd, now that’s a novel take.

    7. Ginny Says:

      In my lifetime I’ve seen a real movement from an attempt (acknowledged as difficult and not always possible) at objectivity (recusals, regulations against fraternization, etc.) and a kind of relativistic or individualistic or nihilistic (there will always be emotional tugs at our reasoning, why not just give up?) The Moore quote is one a friend brings up often and I’ve come to think of as very very wise.
      But the real problem is that we often need to both know ourselves and be willing to discipline ourselves, to sacrifice our good for the greater one. In a post-modernist world that seems a concept long gone if not completely deluded.
      (The fifties and sixties obsession with Henry James came from his repeated theme of self-sacrifice, of trying not to impose on others seen as a good often seems one repudiated in the next decades -as James became less and less the center of study of the American novel.)

    8. David Foster Says:

      Ginny…Moore quote?

    9. Anonymous Says:


    10. PenGun Says:

      A Man For All Seasons

      “Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”

    11. OBloodyHell Says:

      Yeah, i figure we’re about 10y from about 3 different wars.

      A war in Europe between Islam and everyone else there.

      A war in the USA of the Fascist Left vs. Libertarians and Rule of Law

      A War in the Pacific for China controlling the far east (because the USA is distracted and they have no balancing power base)

      “We live in interesting times….”

    12. OBloodyHell Says:

      P.S., yes, that AMFAS quote is a fav of mine. I’ve repeated it a thousand times in a hundred places at various times.

      Amazing how difficult it is for some to get… Even when it’s clearly laid out for them.

    13. Ginny Says:

      And it is fitting that PenGun – from the Commonwealth – speaks – and here we have the great gift the English gave: precedent & Coke, common law & the Magna Charta – I think we improved on it, but we were standing on some pretty tall shoulders.

    14. Subotai Bahadur Says:

      “OBloodyHell Says:
      April 15th, 2018 at 4:12 pm”

      We don’t disagree, but we do not exactly agree.

      10 years strikes me as overly optimistic.

      Agree about Europe -v- Islam

      I don’t count Libertarians in that balance, because they have not exactly had a history of standing and fighting for anything. There will be a war between the Left and the Rule of Law, though.

      I expect that there will be a war in the Pacific; but that China will have opposition from Japan, the ROC, and the ROK. Nukes may well be involved on multiple sides. And interestingly enough, one of the larger handles on the world economy that China has had is most of the reserves of rare earth metals. I said “had” because it was announced, I think yesterday, that Japan has discovered a “functionally infinite” supply of rare earth metals in minable seabed deposits off Japan.

      In passing, the traditional curse has two parts.

      “May you live in interesting times.” and “May you come to the attention of the government.” Both parts of the curse will probably come true.

    15. David Foster Says:

      Lame but unsurprising response by CUNY to disruption of Josh Blackman’s talk:

      We are seeing the normalization of Storm Trooper tactics.