Legal Ethics and Other Oxymorons<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />
Stephen Crampton, Esq.
True law, wrote Sir William Blackstone, is fixed, uniform and universal. That is, it is not dependent on time, the person to whom it is being applied, nor the place in which it is being applied. It applies at all times, to all persons, and in all places. Today, what passes for law is none of those. It ebbs and flows depending on who is involved, where it is raised, and who sits on the Supreme Court. Who sits on the Court in turn depends in large measure on which political party holds the White House when a vacancy occurs on the Court.
In these days leading up to the hearings over the nomination of Judge John Roberts to the High Court, it comes as no surprise that the airwaves are abuzz with talk of the what makes one an activist judge or a respecter of judicial restraint, and how the courts should operate. One aspect of our judicial system that has not received much attention during these debates is the area of legal ethics.
Sadly, "legal ethics," like "working vacation," "tax return," or even "uniform law," has become just another oxymoron. It was not always like that. The portrayal of Atticus Finch in "To Kill a Mockingbird" was no doubt fictional, but it nonetheless suggested a day when lawyers were respected, and the profession held in high esteem. Today, when a stand-up comic bombs and needs a sure-fire laugh, he pulls out a lawyer joke.
The legal profession, and the courts, are self-governing. That is, they police themselves. When rules are respected and morality prevails, this system works fairly well. When, however, the people have become largely irreligious, and morality is deemed a dispensable commodity, leaving the courts to govern themselves is a bit like leaving the foxes in charge of the henhouse. It is, in a word, a disaster.
Consider the following true story: a group of peaceful pro-life protesters were the targets of a <?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com:office:smarttags" />new city ordinance calculated to shut down their protest outside a local abortion clinic. After the ordinance was enacted, the protesters were cited and tried criminally. Two protesters not present on the day the citations were issued sued in federal court to challenge the constitutionality of the ordinance. The federal judge assigned the case, having never met the protesters or even seen their attorneys, entered a judgment in favor of the city.
In addition to the drier legal analysis, the judge took it upon himself to pepper his opinion with gratuitous comments mocking the religious beliefs of the protesters. Though admittedly colorful, his language ridiculing the beliefs of these sincere citizens engaged in the time-honored practice of civil disobedience was wholly inappropriate and unnecessary to his decision.
The case was appealed, and a formal complaint was filed against the judge alleging ethical impropriety. The judge then wrote a letter to the appeals court secretly asking that the case be returned to him so he could "correct errors" in the original opinion. This ex parte letter constituted another violation of the ethical rules governing the courts. But rather than chastising the judge for his obvious attempt to improperly influence the proceedings on appeal, the appeals court acceded to his request and sent the case back to him. The appellate court also put a hold on the original ethics inquiry.
The lower court judge, seizing the opportunity, hastily entered an amended order removing the offensive language but otherwise identical to his original opinion.
How do I know this story is true, you may ask? Simple: The protesters are our clients.
This apparent cover up of the judge's religious discrimination raises many questions. Would the ethics complaint have been taken more seriously had the judge insulted African-Americans, or homosexuals, instead of Christians? Do rules against discrimination apply to federal judges the same as to other citizens? Could a federal judge escape punishment for robbing a bank so long as he returns the money upon someone exposing his wrongdoing? Should the courts be left to police themselves? Is our system hopelessly broken?
We did not reach this point of ethical incoherency overnight, of course. It has taken years for our gradual erosion of basic morality to degenerate to this level. But reach it we have. Few who find themselves embroiled in litigation today view the process with hopes of perfect justice prevailing. The media is quick to suggest that a particular judicial decision was influenced by the politics of the president who appointed the judge.
The intense scrutiny of Judge Roberts' personal and political views bespeaks a nation wary of the lack of fixedness in the law. It is the tragic but not surprising result of a history of judicial activism and disrespect for the rule of law. It is the inevitable byproduct of a Supreme Court that tramples on the authority of Congress and the state legislatures to regulate in the realm of morals and that reverses even its own decisions with impunity. We reap what we sow.
A return to a proper respect for law might begin with appointment to the Supreme Court of a man who practices judicial restraint, like Judge Roberts. Judicial restraint, after all, is nothing but a short hand way of describing a judge who himself respects the rule of law. And whatever else may be said about Judge Roberts, his opinions resound with respect for the law.
Who knows? In time, we may even reach the point where religion is again treated with respect rather than ridicule.
Mr. Crampton serves as Chief Counsel of the American Family Association Center for Law & Policy (CLP), a public interest-type law firm. The CLP=s web site is www.afa.net/clp. Mr. Crampton=s daily radio show, AWe Hold These Truths,@ can be heard on almost 200 radio stations nationwide. He can be reached at email@example.com.
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