the archives of f/k/a . . .

  Judge Burke asks for feedback on the speech, which deserves to be read in full (as do many of the sources cited).  Here are some key points in the speech:

“Today the dissatisfaction with the administration of justice is at a level which none of us should tolerate or accept for it threatens our democracy as much or more than any terrorist.”

 

Citing, Roscoe Pound’s The Causes of Popular Dissatisfaction with the Administration of Justice, Judge Burke notes that a major factor that contributed to this dissatisfaction  

“was political jealousy the other branches of government have with the judiciary due to the doctrine that courts have the final say in what the constitutional law is in our nation . . . . Unfortunately, some political leaders are too easily prone to speak of judicial tyranny when there is disagreement with the outcome of a case.

                                                                                                                                  

 

“Pound identified a third cause of dissatisfaction which he described as the sporting theory of justice.  The sporting theory of justice is the view that essentially the legal process is two modern gladiators in a pitted war, with the role of the judge to be simply a referee for the combat.  Even today the sporting theory of justice is so rooted in the legal profession in that many of us take it for a fundamental legal tenet.” 

“Pound argued that the sporting theory of justice disfigures our judicial administration at every point.  It leads the most conscientious judge to feel that he or she is merely to decide the contest, as attorneys present it, according to the rules of the game, and not to search independently for truth and justice.  It leads attorneys to forget that they are officers of the court and to deal with the rules of law and procedure exactly as the professional football coach deals with the rules of the sport.”

“We need to maintain perspective. Our nation has always been critical of the judiciary.”  [Burke gives examples such as impeachment movements against Chief Justices Marshall and Warren, billboards in the 1970's against Justice William Douglas, and Teddy Roosevelt's claim a banana had more backbone than Oliver Wendall Holmes.] 

 

  “A factor that contributes to our generation’s cause of popular dissatisfaction with the administration of justice is the way we conduct public debate on the issues of our time.  Regrettably too often the current method of policy disagreement is to take the other guy’s idea, mischaracterize it and announce your profound disagreement and outrage.” 

 

In his The Spirit of Liberty speech in 1944, “Learned Hand articulated a vision of justice and liberty that — despite our healthy and legitimate differences about how justice should be delivered — calls to mind some of our highest aspirations.  On May 21, 1944, when the world faced many of the same kinds of challenges we face today, he asked: What, then, is the spirit of liberty? I cannot define it; I can only tell you my own faith:  

• The spirit of liberty is the spirit that is not too sure that it is right; 
  
• The spirit of liberty is the spirit which seeks to understand the minds of other men and women;
  
• The spirit of liberty is the spirit which weighs their interests alongside its own without bias.’”

“Hand tried to tap the powers we bring to the bench, not just those that are attributed to us on the bench.  If judges and lawyers are ‘not too sure we’re right’ we can be far more creative.”

 

“We can move away from the sporting theory of justice.  Instead, whether we are judges, lawyers, or administrators, we must move from recycling problems toward resolving them with the best thinking of the courts and communities. . . . The courts of the future require partnerships with the other helping professions and the public at large.”

 

“Today more than ever we must model our behavior and our debate of the issues that face the courts so that the other branches learn from our example.  In the relationship judges have with court administrators and employees, we must remember we were appointed, perhaps elected, but never anointed.” 

 

“Courts cannot be satisfied with being quick.  Nor can we be satisfied with being clever.  We must strive to be fully just to every person who leaves the courthouse. . . . To address the popular dissatisfaction with the administration of justice, courts and judges must measure and be accountable for the fairness of our actions. 

 

“Most importantly, we need to directly confront the notion that although judges at every level must be neutral – neutrality does not dictate that we mask that we care.  Litigants and the community must know that the judges of our country care about them as individuals.”

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  Back in December 2002, Armed Liberal wrote about the Learned Hand speech on liberty:  ”But the key phrase to me is: The spirit of liberty is the spirit which is not too sure that it is right…’ That’s something I’m working on pretty hard, and something I look for and care about in other commentators.”  Amen!