Experience and Bias in Judges

As I listen to those on the far right side of the political spectrum play what few cards they have to counter Supreme Court nominee Sonia Sotomayor's experience and philosophy, I'm taken by how much is being made of her 2001 statement, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

No less than political dinosaur and serial philanderer Newt Gingrich has called Sotomayor a "reverse racist", because that's easier to do than to try to understand the sentiment behind her comments.

Newt probably doesn't have much experience in that area, given the plethora of white men from predominantly privileged backgrounds that make up most of the judiciary. Perhaps in Newt's eyes, if you've seen one rich white guy, you've seen them all. He's not quite sure what to do with a Latina from NYC.

We all have flavors of bias that come from our upbringing, family, and life experiences. To deny that such bias exists is foolhardy. We're a product of nature and nurture. Judges have several tasks, but as Mark Thompson notes, ...judging, even on the appellate level, isn’t just about interpreting the law - it’s also about interpreting and understanding the facts of a given case and determining which facts are and are not relevant to a given interpretation of the law. In this arena, having a judiciary that is more in touch with the people they are judging is definitely important.

Getting judges with a variety of backgrounds and life experiences seems a much better way to ensure that the judiciary adequately mirrors the very people who stand in judgment. With so much at stake, relegating such power to a narrow band of social and cultural perspective seems antithetical to justice.

Many men and women have graduated from law school and passed the bar exam, and have had fine careers as lawyers and legal scholars. A smaller group has demonstrated the enhanced qualities needed for judicial excellence. Fewer still have ascended to our highest court.

Having a brilliant legal mind tempered with the background of Sotomayor seems to be the best of both worlds. Let's celebrate our differences and use them to enhance and protect a more perfect union.

Gay Marriage and Equal Protection Under the Law

Demonstrated by the collective yawn of a nation when given the news that Vermont and Iowa had moved the ball forward, gay marriage supporters are cautiously optimistic that the majority of Americans are ignoring that histrionic bleating from the religious right and choosing to save their short attention spans for things that truly matter to them, like jobs and food and being able to have money in their retirement account when they turn 65.

Governor David Patterson of New York has even put forth the view that the Empire State should revisit the same-sex marriage issue, lest hipsters in Brooklyn and the entire population of the East Village find themselves trailing Iowa (Iowa? Really??) in progressive social matters. How long before we spot DeKalb corn hats and John Deere color schemes incorporated into the trendy fashion scene as yellow corn cobs on green backgrounds becomes the Von Dutch of 2010?

That's the superficial view, though, and what's really at stake here is equal protection under the law. It's encouraging that for the gay and lesbian community, after waiting 230 years for the privilege, may finally be granted some of the same protections that the rest of us have enjoyed since birth.

Marriage is a wonderful thing, and we should embrace its value while understanding its purpose. For most, getting wed is a religious event, where couples stand before family and friends while a member of their clergy recognizes and validates their unity in the eyes of the church - after they present a civil, government-issued marriage license.

Government cares not which religious ceremony you hold, if you hold one at all, any more than they care what caterer you choose or whether you go the cummerbund route or vest it up with your bridal party. What concerns government is ensuring that society is organized in such a way as to facilitate the application of common laws and principals for the greater good.

When two people, gay or straight, are willing to profess their love and commitment to each other in a formal manner, and choose to formalize this bond in the eyes of society, there should be no delineation when it concerns equal protection under the law. Justice is supposed to be blind, and the application of legal principle should not be driven by whether a particular religious affiliation gives a thumbs-up to the union based on their particular value system.

It's completely understandable if Catholics, Jews, United Methodists, Southern Baptists, and other denominations find same-sex marriage to fall outside the boundaries of accepted behavior for their particular brand of worship, and therefore cannot support religious recognition of the commitment via a church wedding ceremony. No one is suggesting that clergy be required to marry same-sex couples.

But a denominationally-recognized ceremony should not be a requirement for society to enforce the guarantee of governmental adherence to equal protection statutes and to require the full weight and power of the local, state, and federal government to ensure that all who choose to formalize their love can make medical decisions for their partner, benefit from existing property laws, and participate in financial and economic programs whose supposed purpose is the broad benefit of society.

Recognition of same-sex unions from a civil and legal perspective is a concept whose time has arrived and the fact that most Americans believe in the enforcement of basic rights over "gathering storms" means that it will be very difficult to hold back the swell of support for continued progress across this land.

It's a scary time for the religious right as they see control of the discussion snatched away from their narrow interpretation of morality as it is placed instead in the context of society and what is right, rather than what is moral according to their denomination. But it's not more frightening than to be unable to make life and death decisions for your partner as she lays unresponsive in a hospital bed, or to continue to raise a child in a stable family environment if one of the daddies should happen to suffer a tragedy.

A tip of my hat to Iowa and Vermont, and to New York (maybe), and to the other states that have chosen to be the tip of the spear in this struggle. Your work and sacrifice is noble and true.

Speaking for my traditional family of a married man and woman, with three healthy, happy children, we don't feel at all threatened by your new-found ability to be like us.

Welcome to the party. Can I get you something to drink?

The Search for Truth

Albert Einstein once said, "The search for truth is more precious than its possession." What greater justification is needed for a "Truth Commission" to investigate possible crimes committed by Bush administration officials?

In his NY Times Sunday column, Frank Rich compares the Ponzi scheme committed by Bernie Madoff to a similar exercise by the Bushies regarding Iraq reconstruction that will soon be detailed in a 513-page history of the multiple schemes and scandals, being put together by the Office of the Special Inspector General for Iraq Reconstruction.

Like all successful Ponzi enterprises, the American people were mislead into believing there were steady "dividends" resulting from the millions of dollars being poured into Iraq, when there is little evidence to support these claims. Through the middle of 2008, $117 billion had been spent in Iraqi reconstruction, yet showing a benefit that exceeded the cost would be exceptionally difficult.

There are other examples posited by Rich - the $345 billion in lost tax revenues resulting from lax enforcement of offshore corporate tax shelters, $350 billion in TARP funds for which Hank Paulsen and friends are unable to provide documentation to substantiate where the money went and how it was spent, and other sundry scandals, missteps, and outright frauds perpetrated by members of the outgoing administration and their minions.

Calls for a 9/11-style "Truth Commission" to begin discovery proceedings that could lead to criminal prosecution of administration officials are growing louder as the Bush presidency wanes, and the reaction from various fronts is surprising. I'm amazed at the number of groups that believe we can't live in the past and should instead concentrate on repairing the significant damage that has occurred during the past eight years.

Rich writes, "In the old Pat Moynihan phrase, the Bush years have “defined deviancy down” in terms of how low a standard of ethical behavior we now tolerate as the norm from public officials."

The Center for Public Integrity detailed “125 systematic failures across the breadth of the federal government” during the Bush years. That's the tip of the iceberg, a view based on information we already have. A forensic examination that goes beyond public records is sure to uncover a breadth and depth of malfeasance, a "Rove trove" if you will.

While in agreement that adjudicating each decision and discovered wrong of the Bush administration could strain resources needed to get the country back on track, that's not a good reason for sticking our collective heads in the sand and moving on. Seeking the truth is more important than what might be learned.

Consider the practice of abducting citizens from their native countries and whisking them away to rendition sites, where they are held without charge, denied access to legal counsel, interrogated in manners that would violate the Geneva Convention, all under the guise of "enemy combatant" or the global war on terror. Cases of death and serious injury have resulted and been reported, and many of these practices would seem to violate international law.

If the US government fails to fully investigate the circumstances surrounding groups that implemented Bush policy, with a level of transparency and accountability required of a nation that claims "due process" as its own, or fails to react appropriately to the results of any such query, then we're truly nothing more than an elaborate fraud. 

What would happen if Bush administration principals travel abroad after January 20 and are arrested in a foreign land, to be put on trial for violating the laws of that country, or far worse (or better, depending on perspective), brought before The Hague on war crimes charges? As we attempt to change the world view of what the US has become, having an international organization investigate and punish our leadership because we were unwilling would be a terrible indictment of our failed values.

Let the US show the world that we are true to the tenets of democracy that we trumpet at every opportunity, among them truth and justice. We will not shrink from our responsibility to police our own, nor will we forgive the sins of those who came before us to expedite solving the problems of today.

Justice, the Old Fashioned Way

The New York Times has an editorial posted concerning Senator Jim Webb's proposal to reform the nation's criminal justice and prison systems. Webb uses his extensive knowledge of Asian culture and sense of right vs. wrong to make a strong case for change.

I first became aware of his views when reading his books "A Time to Fight" and "A Country Such As This", the former a work of non-fiction and the latter a novel. Webb pointed out many instances where our criminal justice system was failing, either via straight-ahead commentary or through the eyes of a specific character.

In "A Country Such As This", one of Webb's main characters,  “Red” Lesczynski, a Navy pilot, develops a fascination with Japanese culture and forms a strong friendship with a local businessman who works for a small automobile manufacturer that is beginning to expand globally - Toyota. 

Through this relationship, Red is able to compare and contrast various aspects of American and Japanese culture. One area where Lesczynski notes major differences is in the Japanese justice and prison system, which surprises him because Japan's system was built during the allied occupation after WWII, using the American and British frameworks as a model. Somewhere along the way, the Japanese stayed true to the tenets of western justice brought forth by our forefathers, while the Americans lost their way.

Since all good fiction has a basis in truth, it's not shocking that some of the same arguments made by Webb in his novel are evident in his call for reform. It also does not make them any less relevant.

The US has a higher percentage of its population incarcerated than any other country - 1 in 100. We have 5% of the world's people and 25% of the prisoners.

The majority of our inmates are serving sentences for non-violent crimes, and we're spending billions upon billions to build and staff prisons to keep up with the increasing number of convicts. Imagine the good works that could be performed with those funds.

What does it say about the circular logic of the current system when locking up more people has the result of causing even more people to be incarcerated? If prison was an effective deterrent, shouldn't the outcome be completely different?

And what does it say about us that we choose to remove our friends and neighbors from our society for minor transgressions, rather than meting out appropriate punishment and then moving on?

The days when people were placed in stocks in the public square and suffered the temporary scorn of the populace appear highly effective in retrospect. When their time was up, the offenders were released (and accepted) back into society, where they resumed their contributions to the collective group. Jail was left for those who committed crime so heinous or unforgiveable that they needed to be removed completely for the good of the people.

We need more people paying their debts to society through public works projects, social services agencies, and community improvement initiatives. The cost of managing these programs is dwarfed by the public benefit that results, as opposed to the bottomless pit of prison.

Lest you attempt to label me as a bleeding-heart liberal, consider that I spent three years as a military police officer, majored in Administration of Justice at Penn State, and spent fifteen years in corporate fraud and investigations prior to launching a second career in information security. I've seen all sides of the paradigm.

It's said that the definition of insanity is to follow the same recipe while expecting different results. That's the tipping point we're at now. Without wholesale change in our approach to good vs. evil, we're sentencing ourselves to decades more of the same outcome.

Law and order politicians, mandatory minimum sentencing, and the concept of "when you have a monster judicial hammer, everything looks like a nail" have led us astray. Maybe our future can be solved by our past.

Abraham Lincoln is quoted as saying, "I have always found that mercy bears richer fruits than strict justice." As we move into a new approach to governing, perhaps it's time to include mercy on our list of core values.