Thinking like a federal trial judge

SHG has a post at Simple Justice about thinking like a lawyer. I am agnostic about Scott’s views. But his post prompted me to think about a related matter.

This is a post about thinking like a real federal trial judge. You will think like a real federal trial judge if you understand that:

  1. there is no justice or injustice;
  2. there is only the law, and that is more than enough.


22 responses

  1. Harry Philo, ” Never let us forget that the Law is never settled until it is settled right, it is never right until it is just, and it is never just until it serves society to the fullest.”

  2. Let’s also never forget that it is the men and women of a free society who determine what “just” is. Not government. Not any branch of government.

    All a judge can do is follow the instructions given him by his employers, that impossible committee. Those instructions are the law as it’s written.

    Roger Taney, Louis Brandeis, and Thurgood Marshall are examples of the failures from judges assuming that definition to themselves.

    Eric Hines

  3. 3. “I AM the law, and I’ll be damned if I let a stinking piece of paper (the Constitution) tell me what to do.” (Thank you, Judge McCree and Judge Gertner). Judge Posner elaborates:

    “Ivan Karamazov said that if God does not exist everything is permitted, and traditional legal thinkers are likely to say that if legalism (legal formalism, orthodox legal reasoning, a “government of laws not men,” the “rule of law” as celebrated in the loftiest “Law Day” rhetoric, and so forth) does not exist everything is permitted to judges–so watch out! Legalism does exist, and so not everything is permitted. But its kingdom has shrunk and greyed to the point where today it is largely limited to routine cases, and so a great deal is permitted to judges. Just how much is permitted and how they use their freedom are the principal concerns of this book. . . .

    I am struck by how unrealistic are the conceptions of the judge held by most people, including practicing lawyers and eminent law professors, who have never been judges–and even by some judges. This unrealism is due to a variety of things, including the different perspectives of the different branches of the legal profession–including also a certain want of imagination. It is also due to the fact that most judges are cagey, even coy, in discussing what they do. They tend to parrot an official line about the judicial process (how rule-bound it is), and often to believe it, though it does not describe their actual practices.

    If judges actually limited themselves to #1 and 2, I would have no reason to complain, but we all know that they don’t, and even some judges are candid enough to admit it.

  4. “there is no justice or injustice”

    That makes no sense whatever. If there’s no justice what’s the point? This rejection of God’s Law as nonexistent and(or) stupid and irrelevant is destroying the society. You ‘judges’ s/b replaced by men having character.

  5. I just wish our judges COULD do that, Eric. I see two decisions on the same day with opposite holdings, and the only difference is that one set of judges was appointed by Democrats and the other, Republicans. Our judges enjoy too much discretion, without enough accountability.

    Let’s be honest: Applying the law forthrightly is something judges don’t WANT to do. We reward political hacks with lifetime jobs on the bench, and wonder why they won’t do it? Justice Scalia laments:

    “Judicial decisions, like the Constitution itself, are nothing more than “parchment barriers.” Both depend on a judicial culture that understands its constitutionally assigned role, has the courage to persist in that role when it means announcing unpopular decisions, and has the modesty to persist when it produces results that go against the judges’ policy preferences. Today’s opinion falls far short of living up to that obligation—short on the facts, and short on the law.

    For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from us all.” (Michigan v. Bryant, Scalia dissent)

    How can we make judges think the way Scalia thinks they should? How can we make SCALIA think the way Scalia thinks he should?

  6. Accountability breeds character. If judges had to answer for what they did, they would exhibit more of it. Golf has an incredible accountability system, but federal judges have none at all.

    The problem with applying “God’s Law” is in knowing what God “wants,” and unless you can prove that you know what God wants, it is pretty hard for you to implement God’s wishes. A judge’s job is to apply the law, leaving “justice” to others.

  7. The origin of the term justice in Old English meant the administation of the law and a justice also was the title of a legal administrator. Since then integrity, imartiality and fairness where added as desirable charcteristics of a legal administrator.

    It would be a good thing if the legal administrators all had integrity and were impartial and fair but who decides if they are? In any case they will administer the law and there is too much of it to be done properly in my opinion.

  8. Judge:
    The best advice I ever got as an adjudicator myself (I am a full-time administrative law judge for a state agency) was from a judge who said “Always act as if you are the third lawyer in the room.” I like this advice for three reasons: 1) it places a premium on cooperation in what is an adversarial process; 2) it takes the air out of those who wear the black robes and think that the suns rises and set around them; and 3) forces reliance on the legal skills we learned in law school rather than the intuition on which we too easily rely while in an adjudicative capacity.

  9. Justice indeed does not exist, because it is something negative. It is the absence of harm. It is peace. The merely derivative “justice” prosecutors speak of tries to prevent harm by doing harm, by fighting fire with fire (which, incidentally, is, although dubious, not impossible; that’s what a “back-fire” is). Hence, no one in the criminal justice system serves justice more directly than the criminal defense attorney. By making him a second-class citizen therein, by treating him as an afterthought, by viewing him as a nuisance and an ankle-biter, the system, to paraphrase Nietzsche, “becomes what it is” – a farce.

  10. John,

    You raise an interesting and very important point. Denying that that the job of a trial judge is to do justice does not mean that the judge lacks moral sensibilities. A judge, even a German judge, who finds the law intollerable resigns.

    I commend to you the case of Lothar Kressig, a German county court judge who during the Nazi regime issued injunctions against sending hospital patients to extermination camps. When ordered to withdraw his injunctions, Kreyssig refused. He also attempted to initiate a prosecution of Nazis for their role in the program. Kreyssig, under pressure, eventually resigned.


  11. “If judges had to answer for what they did, they would exhibit more of it. Golf has an incredible accountability system, but federal judges have none at all.”

    That’s certainly true, all this ludicrous ‘constitutional checks and balances’ propaganda to the contrary notwithstanding. The temptation for judges to evolve into demigods is hardly surprising. Few could/can resist the temptation, facilitated largely because people are stupid enough to put up w it. The higher the ‘court’, the greater the problem, finally culminating in the sc lib majority (ruled practically by the witless and cowardly Kennedy – philosopher kings/social engrs dictating morality to a society stupid enough to take it from them – think abortion, the revolting ‘gay’ agenda, so utterly destructive of masculinity, women in combat (combat is hard enough on men and is utterly destructive of the kindness, compassion and generosity, the femininity of women), etc., etc., on and on ad infinitum, ad naeseam. The whole rotten lib agenda.

  12. Pingback: Lothar Kreyssig « Hercules and the umpire.

  13. The problem is what to do when, in the words of Mr. Bumble, the “law is an ass.” Who saves us then? Judges, particularly federal ones, owe all of us fidelity to higher principles than simply “the law.” For one thing, just knowing what the law is, especially at common law, can be particularly tricky. Other times, the law may be unambiguous but of questionable legitimacy. (Certain ideologically driven 5-4 fiats come to mind).

    The rub, of course, is in deciding what guiding “higher principles” should be applied in any particular case. But just because discerning those principles is hard and inherently subjective doesn’t mean federal judges should shy away from the task. It requires them to be judicious!

  14. Jam,

    I will ask you a similar question to the one I asked Vince. Which higher principle do you suggest that I pick to make a decision, the one you like or the one I prefer?

    The law may be an ass (at times), but Plato is long since dead so we can’t count on him and federal judges make very poor Platonic Guardians. For God(s) sake, look at me!

    All the best.


  15. The problem is what to do when, in the words of Mr. Bumble, the “law is an ass.” Who saves us then? Judges, particularly federal ones, owe all of us fidelity to higher principles than simply “the law.”

    The higher principles to which (Federal) judges owe us their fidelity include two paramount: their fidelity to their employers, us members of our social compact; and to their oaths of office, which requires them to rule in accordance with the Constitution. By extension, they’re also required to rule in accordance with the law before them, if they find that law legitimate, or to toss the law if they find it not.

    Moreover, again by design, our government does not have the task of saving us from ourselves–it’s only required to try to protect us from each other and from external threats.

    As to knowing what the law is, especially at common law, that’s actually quite straightforward: it’s what the text of the law says, as passed by our representatives in Congress and signed by our representative in the White House (or re-passed over his veto).

    It’s certainly often difficult to understand what that text is saying (and this is so by increasing design, as Congress gets more and more weasel-wordy and vague in its bills, but that’s on us, too, for continuing to hire folks who engage in such cop-outs), but figuring that out is sufficient unto the day for any judge.

    If the law is an ass, it’s our task to fix that, not any judge’s. Our social compact documents, by design, reserve alterations to any law and to the Constitution to the members of the social compact. Any judge who rules differently violates that fidelity.

    Eric Hines

  16. To answer your question, I pick the one you prefer, dear King Richard! I haven’t had my decision-making skills subjected to the crucible of a Presidential vetting committee, the FBI, and 100 Senators; nor have I had the honor of attending indoctrination classes at the Federal Judicial Center!

    Judicial resort to extra-legal guiding principles is inevitable. To pick a quotidian example, what happens to a class action case pending before a federal judge under CAFA jurisdiction after the court denies plaintiff’s class certification motion? Was jurisdiction vested at the time of the filing of the complaint such that class cert denial is of no jurisdictional effect? Or, now that there is no class, does CAFA jurisdiction fail? In my circuit the answer is undecided, and the trial courts have ruled inconsistently.

    Given there is no “law” in this instance, how does one decide the question? Is your guiding principle that federal courts are of limited jurisdiction and should punt as much as possible to the state courts? Do you believe federal courts should protect corporate citizens from the clutches of over-reaching, Cook-county-like jurists and should keep such cases at all costs? Are you swayed by pragmatic concerns like your over-crowded docket, or do you look to high-minded theories like law and economics favoring efficiency?

    As a judge, you are paid to make the call. It seems a disingenuous dodge to say the “law” compels one answer over the other. I may not like the result or the reasoning behind it but as long as you bring intellectual honesty, transparency and consistency to the task, then I think you have done your job well. Explicate whatever higher guiding principles you have chosen. If you can, add some Cardozoian rhetorical flair while doing so. I’d say that’s what makes a great judge!

  17. Mr. Hines,

    I wholeheartedly concur with you that judges are bound by the two higher principals you describe. We as a society certainly don’t need life tenured federal judges tilting at every “injustice” they perceive in the law. We have bloviating elected officials to do that.

    For the most part, the law is clear or at least discernible and so no result to higher guiding principles is necessary. But, the rubber meets the road when the law is unclear, undeveloped, or contradictory. The “law” can’t be the sole source for resolving the case in that instance. Similarly, at times, rigid application of the law can lead to absurdities or plainly unjust results. This is when courts often take your line and say nothing can be done, it’s a problem for the legislature. Except the legislature doesn’t fix the problem and the litigants (and we as a society) are left with the absurd or unjust consequences. This is precisely when we most need judges to step in and not to shirk responsibility under the “it’s not my job” mantra.

    To the Judge’s point, I may not like the guiding principles the court chooses or I may not like the result. But to me, it is far more important that those given the power exercise it. Hopefully, they will do so wisely. Requiring them to explain their reasons and apply their rules of decision with consistency and honesty is the best way to ensure that happens.

  18. The “law” can’t be the sole source for resolving the case in that instance.

    Of course not. But the law (no quotes needed) is all we’ve authorized our judges to act on–and within. The rest is, again by design, on us, the members of our social compact.

    When that drives a judge to an absurd result, that’s all the judge can deliver. It’s not up to him to deliver us from ourselves–as avoiding that absurd result would seek to do. It’s not our government’s role to protect us from ourselves.

    It is, indeed, not at all a judge’s job to step in; doing so would be exactly that shirking of responsibility.

    Perhaps you see a parallel with a campaign of civil disobedience. A critical difference though, is the judge is not disobeying; he’s obeying, and the absurdity, in those corner cases, then gets drawn to our attention. It’s not a cop-out for the judge to say, “Not my job, that’s political, and so the people’s and their representatives’ job;” it is exactly their job and the judge’s job to leave it there.

    Justice Ruth Bader Ginsburg and her cohorts like to say the Constitution is a living document. Justice Robert Jackson and his cohorts liked to say that the Constitution is not a suicide pact. Indeed, it’s not a suicide pact, but deviating from it is. Ginsburg also is right, and also for wrong reasons. The Constitution, and Congress’ laws–the people’s laws–do not live through creative interpretation or conveniently updative rulings from the bench. The laws live through our decisions as citizens and those we elect to represent us. The Constitution lives through Article V–our decisions as citizens.

    Don’t like the outcomes of present? Convince enough of your fellows to agree with you, and pass a suitable amendment.

    Finally, what’s your limiting principle? You say you’d accept Judge Kopf’s principle. But Justice Ginsburg has a different principle. Neglecting the artificiality of differences in system hierarchy, which principle should apply? The “judge’s principle” resolves no conflict, rather that potentiates the conflicts.

    My limiting principle is the Constitution, and the lesser law, as written. Full stop. Conflicts there are ours to resolve, and no one else’s, and this limit leaves the matter there, where it belongs. Again, full stop.

    Eric Hines

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