Like a schizophrenic who missed his dose of Haldol . . .

Like a schizophrenic who missed his dose of Haldol, I sometimes see connections between things that saner people don’t. Perhaps I am having one of those days.

Today, I want to highlight two articles in the press. I think they are connected, but maybe only at the cosmic level. You decide.

The Next Nine Years by Linda Greenhouse

Remember Chief Justice Robert’s confirmation hearing?  He uttered these famous words:

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them.

The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

But it is a limited role. Nobody ever went to a ball game to see the umpire.

Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.

And judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench.

Quoted from Roberts: ‘My job is to call balls and strikes and not to pitch or bat,’ CNN (September 12, 2005).

In Linda Greenhouse’s piece, she raises an interesting question. What kind of an “umpire” will Chief Justice Roberts be in nine years. In raising the question, she looks back at the Chief’s tenure during the past nine years. It is a fascinating piece backed up by a knowledgable observer’s discussion of some of the big cases.

Here is my take on Greenhouse’s piece: Chief Justice Roberts may be more the good lawyer and less the pure ideologue than you might otherwise have believed. While we tend to focus on the Chief’s “umpire” analogy during his confirmation hearing and many may sneer at his suggestion, Greenhouse raises the possibility that we are missing the boat with that focus. It could be that Roberts statement about listening to his colleagues–“And judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench.”–was far more significant.

If you care about the Supreme Court and how a Chief Justice can shape the Court if he or she has the traits of a practical lawyer open to compromise, Ms. Greenhouse’s piece is worth your time.

Yazidi boy reunited with family in Lincoln after 4 years by Chris Dunker (slow to load–be patient)

Remember the awful game, “fire, dare and repeat?” The premise of the game is that one participant forces the other participant to contemplate some awful choice. Then, that other participant must make the choice and say the choice out loud to all those assembled. Sensitive people seldom finished that game. I was very good at the game. When I played against girls, I could almost always make them cry and drop out.

So, let’s play. Here’s my question to you: “Would you abandon your newborn child–your only child–to save yourself and your spouse from those who would surely kill you both because of your religious beliefs?”  Let me hold up a photo of the baby for you to see as you make your choice. “Yes” or “No.” For a real life version of that “game,” read Chris Dunker’s article.

The Connection?

The rule of law. Or maybe the absence of Haldol.



14 responses

  1. The question you pose brings to mind the powerful movie, “Sophie’s Choice”, where a similar kind of decision had to be made. Also, I think of an even older movie, “The Cardinal”, where actor Tom Tryon, playing the Catholic priest, has to made a horrible choice of life and death involving his sister and her yet unborn child.

  2. The rule of law is what separates the West from the rest of the world. And that is also exactly why this current war with radical Islam ( including Iran) is so important.

  3. Life is full of ironies, The Cardinal involved the bar to what are know in RC moral theology as craniotomies, and the requirement that both mother and child be allowed to die, rather like the recent case of the Indian dentist in Ireland. The term craniotomy is not longer used in medicine and the procedure is called a partial birth abortion. The phrase rule of law in its first formulation in Dicey was a slam at French law and the administrative courts. Have you and Cornhead forgiven the French? Frightening thought Sharia is law, it is just not the law we want to be ruled by..Dicey, a classic liberal, dislike discretion in the government, reading definition was standard joke beginning of ads law courses.

  4. repenting lawyer,

    I agree that life is full of ironies. I disagree with several points in your comment, however, and I also wish to make several observations about the implications of your comment.

    First, modern medicine does not recognize the term “partial-birth abortion.” The term often used by doctors is “Intact D & E.” See, e.g., Carhart v. Ashcroft, 331 F.Supp.2d 805, 923, (D. Neb. 2004).

    Second, the procedure you call “partial birth abortion” has been recognized by surgeons in American since at least 1866. See, e.g., Hugh L. Hodge, M.D., The Principles and Practice of Obstetrics 268 (1866) (discussing “Embryotomy,” “Craniotomy” and “Cephalotomy”; calling these types of procedures “probably the most ancient of obstetric operations”; referring to a “Craniotomy or Cephalotomy,” and stating: “Delivery by this operation implies perforation of the head, diminution of its size, and then its deliverance.”).))

    Third, the procedure you call “partial birth abortion” has been mentioned in modern American literature since at least 1949 as being “routine.” See, e.g, Henry Morton Robinson, The Cardinal 77-78 (Simon & Schuster 1949) (“`If the birth is started, and the infant’s skull gets wedged in the pelvis [sic][,]'” the “`[r]outine practice among non-Catholic doctors calls for a craniotomy — that is, crushing of the infant’s skull.'”)

    Fourth, as a matter of principle, I never forgive the French.

    Fifth, the concept of the “rule of law” dates back far before Dicey. It dates to the time of Aristotle. Aristotle ruled out the concept of “rule under discretion” and instead asserted that given the choice it is always the “rule of law” that scores over “the rule of discretion.”

    Sixth, it is very difficult to generalize about Sharia law just like it is difficult to generalize about Anglo-American law. That said, in criminal matters, Sharia law generally requires a trial before a neutral judge (rather than an inquisitorial judge) called a qadi (Arabic: قاضي‎ qāḍī). The qadi is required to apply rules and procedures such as barring confessions due to duress. See, e.g., Rudolph Peters, Crime and Punishment Under Islamic Law, p. 9 (Oxford University Press, 2005). Properly understood, Sharia law is not without protections for the criminal defendant. Sharia law is certainly different from the law we are familiar with, but it is not “frightening” to me (at least in the sense that I think you mean). It is just very different.

    All the best.


  5. You are finding implications where none were intended. I said craniotomy was no longer used as a name for an abortion procedure, as any fan of Gray’s Anatomy knows. The irony I saw was the reference to the movie scene given your experience with cases involving the procedure in conection with the discussion of Roberts CJ whose religion is often raised on abortion related issues.
    I stand by the irony of rule of law irony given Dicey . I am,however, a great fan of Wolf Tone’s case.
    I am aware of how Sharia works, as personal law it is still used in India. It is a sophisticated system of legal thinking, though perhaps quite dated for most purposes. What triggered my comment was the rule of law remark and the once common tendency to see Sharia as the exemplary of the arbitrary, which I think stated with L Hand.
    I do find the rule of law a clumsy short hand for a liberal in the political philosophy sense legal system. Vince Lombardi according to Jerry Kramer applied the rule of law,”he treated us all equally like dogs.” A nonarbitrary system my be very savage, and despite what the contract profs told us, a little unpredictability is no bad thing in a legal system.

  6. Sidebar, I know partial birth abortion is a politically loaded term , just did not remember the proper medical term. Every literate Catholic read the novel the Cardinal in the late 40s and early 50s. I cheated and read it for a high school retreat. Maybe Kennedy’s rather odd opinion in Carhat v Ashcroft indicates that he read it . It is the treatment of this procedure and other procedures when mother’s life is threaten and the child is dying that leads to criticism of double effect. Irish case and dispute between Bishop and hospital in Phoenix are exemplary of problems.

  7. repenting lawyer,

    For obvious reasons, I get wiggy about the partial birth abortion cases. Your reference to Justice Kennedy’s opinion in Carhart v. Ashcroft as “rather odd” is, with due respect to the Justice, charitable.

    Thanks for your engagement. All the best.


  8. repenting lawyer,

    You write: “You are finding implications where none were intended.” You are right. See my comment regarding partial birth abortion. I apologize.

    All the best.


  9. In the Islamic Republic of Iran, judges are personally liable to litigants for acts of misconduct. Iran has a rule of law which is more predictable than our own, as it is based on an external standard (the Koran). I would have more confidence in an Iranian court than I would here.

    The rule of law is what separates the rest of the West from America. Here, we endure the arbitrary and capricious rule of judges. If judges actually applied the law of the land to the true facts of each and every case, it wouldn’t matter if they were liberal or conservative. The mere fact that Linda Greenhouse raised the question proves the point.

    In England, a judge can be removed from the bench by Parliament. We made a huge mistake.

  10. Judge
    In one story you have parents who made an excruciating choice only to see their child survive harrowing circumstances to join them in a new home. The other story attempts to see into the future as to what Chief Justice Roberts’ tenure on the Supreme Court may look like. We don’t know (and can never know) what the future holds for any of us. That fact is true whether our station in life is high or low. But both stories connect where the uncertainties of the future meet the certainty of the present…and can best be summed in those three lovely words: “Only in America.”

%d bloggers like this: