By JANICE HYDE
The Law Library in cooperation with the American Bar Association Division of Public Education commemorated Law Day on May 1 at the Library with a panel discussion titled "The American Lawyer as Judge." The program was the third in the Leon Jaworski Public Program series, "Representing the Lawyer in American Culture."
Additional cooperating institutions included the American Bar Association Standing Committee on the Law Library of Congress, the Friends of the Law Library of Congress, and the Federation of State Humanities Councils. Judge William S. Sessions, former director of the Federal Bureau of Investigation and chairman of the American Bar Association's National Law Day observance, presided over the evening's program.
In welcoming remarks, Law Librarian Rubens Medina noted that the Law Library has made it an annual tradition to celebrate Law Day by taking time to reflect upon the law and those who make law their profession. "In a world that is currently embroiled in conflict and crisis, it is more important than ever to rededicate ourselves to the principle that law is the foundation of peace and justice," said Medina.
American Bar Association President Robert Hirshon then reflected upon the legacy of Leon Jaworski, for whom the public program series is named, and highlighted Jaworski's dedication to informing the public—especially young people—about how the work of lawyers reflects and affects society.
Gail Leftwich, president of the Federation of State Humanities Councils, said that the humanities councils seek to examine the law in a humanistic context. She observed that the Jaworski series of public programs looks at how lawyers help people in their daily lives.
Marcia Coyle, Washington Bureau chief and Supreme Court correspondent for The National Law Journal, served as moderator for the panel. She opened by posing three basic questions to frame the evening's discussion: What are the habits of heart and mind that make American judges judges? What are the habits of heart and mind that make American judges American? Who, specifically, exemplifies the American judge?
Coyle showed a set of slides depicting numerous judges, including Chief Justice John Marshall, as well as Mills Lane, who presides over a television courtroom. In each instance she asked, "Does he exemplify American judges?"
Acknowledging that judges may be looked upon with great esteem, Coyle quoted William Howard Taft, who said that judges "typify what we here on earth will meet in heaven." Showing a slide of Supreme Court Justice Sandra Day O'Connor, Coyle asked the panelists to consider the significance of the confirmation hearing in the process of becoming a judge. Noting that the Supreme Court is to consider a Minnesota case about campaigning for judgeships, she said the Law Day discussion was timely. She showed a brief video clip of a television advertisement depicting three judges literally "in the pocket" of a wealthy interest group.
The three panelists took strikingly different approaches to the subject. Christine Corcos, associate professor of law, Louisiana State University, opened her remarks by reading a headline from The National Enquirer concerning adjudication of marital problems by Judge Judy, another popular "television judge." This set the stage for her review of how judges are portrayed in popular culture, including television and films. In her view, Americans' perceptions of judges are based largely on their portrayal in the media. Corcos said Americans tend to have a "schizophrenic view" of judges, believing they should be both impartial and empathetic in deciding appropriate remedies to people's problems.
Television judges, such as Judge Judy, do not always explain their decisions, leaving some viewers to believe that judges simply make up the law as they go along, Corcos said. There is also a sense, perhaps a holdover from the days of the "hanging judges" such as Judge Roy Bean, that "a good lawyer knows the law, but a great lawyer knows the judge," she said. Both ideas may relate to a fear that the average citizen will not get justice before a judge. A contrasting image is the "judge as hero"—one who votes his or her conscience, Corcos said. Ultimately, she said, the public credits judges with much more or much less power than they actually have.
Corcos suggested that many of the public's ideas about judges stem from a lack of understanding of the separation of powers. The public has trouble believing that judges can separate themselves from politics and other influences.
The second panelist was Paul Kahn, the Robert W. Winner Professor of Law and the Humanities at Yale Law School. Kahn observed that judges are asked to mediate or negotiate between contradictory demands. The particular contradictions that judges mediate are common to the human condition; thus, in mediating these tensions judges embody the ideal of citizenship. He noted five tensions or contradictions that judges must balance: First, judges move back and forth between anonymity and personality. They observe traditions, such as the wearing of black robes, and ritualized proceedings to emphasize their anonymity; yet, a great judge may become a personality or a democratic hero. Second, judges are always subordinate to a source of authority outside themselves and yet, the public prefers judges who show some autonomy of thought. Third, in negotiating a contradiction between the past and the future, judges look to the past—citing precedent and original intent—and yet they are supposed to make clear their intent to guide future rulings. Fourth, although judges are "political actors" in the broadest sense, they are not supposed to have a political identity, Kahn said. Fifth, judges must mediate between reason and will: the law should have reason behind it, but reflect the will of the people.
After hearing about judges, the audience had the opportunity to hear from an actual judge—David Tatel, a judge on the U.S. Court of Appeals for the District of Columbia Circuit. Judge Tatel said he was intrigued by one of Marcia Coyle's questions, "How do judges themselves understand their own essential qualities as judges?" He quoted former Supreme Court Justice Byron White, who declared that the role of judges is "[to] decide cases."
Expanding upon Justice White's definition, Tatel said judges apply a set of legal principles—whether set by statute, regulation, provision of the Constitution, or case law—to a set of facts to resolve a controversy or dispute "as objectively as we can with as little political input as possible."
From his point of view as an appellate court judge, the system works remarkably well. He described his own thought processes in two cases, explaining that he bases his decisions upon the law and the facts of a case rather than his personal view as a citizen with a policy perspective.
In responding to a question from the audience, Kahn touched upon the issue of the process of transformation from lawyer to judge. He noted that much of that process is a mystery, but that the confirmation process is a step toward "suppressing the self"—a self with private opinions and knowledge—in order to become an impartial judge who must maintain and articulate the rule of law on behalf of society.
Corcos noted that other countries are now paying a great deal of attention to the way U.S. judges balance these tensions. She suggested that the "uniqueness" of American judges may not be true for too much longer.
Janice Hyde is the Law Library's program officer.