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Wet Fingers and a Changing Wind

Justice Jim Nelson
November 11, 2005
Consumer Attorneys of California
Annual Convention

I'd like to thank the Board of Governors of CAOC for inviting me to speak at your annual meeting. These remarks evolved out of my experience as a candidate for re-election for my seat in 2004. As in many recent judicial elections, my race was hotly contested, nasty, and expensive.  I made a promise to myself after the election, however, that I was not going to simply continue to shrug off the epithets constantly hurled at our court system, at judges and at lawyers by politicians. In particular, I vowed that in my last term as a judge, I was going to confront the pervading ignorance about the third branch of government that seems to infect the other two.  There are two institutions that have preserved our freedoms in this Country: a free press and an independent judiciary.  I speak in defense of the latter.

With that, I must start with a caveat:  I'm speaking only for myself and not for the Montana Supreme Court.

Maybe I'm wrong, but it seems that our society is becoming an increasingly harsh place in which to live.  There is hardly a social welfare program that has not been or is not  being cut.  We short change health-care; we short change education; we short change every program that will benefit the least among us.  Our children, our poor, our disabled, our mentally-ill and our disadvantaged, marginalized citizens are the first to be dealt out of the global economy.  There's plenty pork for big businesses; there's always room for tax cuts for those who need them not at all; there are billions upon billions of dollars for war.  But when push comes to shove there is little for anyone or anything else. 

There seems to be a pervasive false morality in government--one which grounds itself in strident religiosity, yet, at the same time, ignores the fundamental teachings of the Judeo-Christian ethic in which it wraps itself-- a message that speaks to concern for the poor, the naked, the hungry, the homeless, the imprisoned, the peacemakers and the sorrowful; and there is a false patriotism afoot--one that wraps itself in the Flag, but ignores the Constitution and the rule of law.

Indeed, our citizens' rights of access to state and federal court systems are being restricted; remedies for injuries caused by harmful products and services are being narrowed; and, in many cases, the persons, firms and corporations that deliver those products and services are simply being immunized from their own wrongful conduct--all with the aim of promoting profits and political agenda at the expense of the rights of consumers, ordinary men and women and main-street business people. 

Politicians seem bent on arrogating to the government the power to decide how we live, think, marry, pray, vote, work, invest, educate our children, reproduce and die.  Those who oppose these "reforms"--consumers, unions, blue collar workers, teachers, public service workers, main street business people--are labeled: selfish special interests; liberals; anti-reformers; anti-American; unpatriotic.  At least in this State, it appears that on Judgement Day, some of these attempts were Terminated.

Nonetheless, in furtherance of these agenda, many politicians have launched a jihad against our court systems, the people who use them and against our state and federal judges. Lawyers and the legal profession are disparaged and are made the butt of ridicule and insult.  Indeed, it has become politically popular and socially acceptable to demonize lawyers and judges.  We are led to believe in op-ed pieces and in political speeches that at the core of every problem in America are an activist judge, a money-hungry, unethical lawyer, and a frivolous lawsuit.

I think it is overdue that the judiciary and the legal profession have its day in the court of public opinion.

In his book God's Politics, Why the Right Gets It Wrong and the Left Doesn't Get It , Jim Wallis (an evangelical minister and lecturer) tells a striking story.  He tells of going to Washington D.C. and observing a number of men and women walking around the Capital grounds with their freshly-licked fingers held high in the air.  These men and women are politicians--and I think, too, the lobbyists and special interests that serve them.  These folks have their wet fingers pointed skyward to see which way the wind is blowing; and they are all quite adept at making that determination and then quickly moving in the appropriate direction of the wind.

Wallis notes that this behavior is not necessarily malicious.  Most politicians go to Washington because they want to do the right thing; they want to make a change.  But, after a while, they get entrenched in the Belt Way mentality and realize that power and wealth are the real governing forces.  Making a change becomes more of a distant and unattainable goal; and often there is no public backing for change anyway.  So it's business as usual.  Wet your finger; test the wind; and act accordingly.
Wallis notes that many of us believe that by replacing one wet-fingered political with another, we can change our society.  We know, however, that is simply the triumph of hope over experience.  It very rarely works.  And when it doesn't work we get disillusioned and give up; we grumble; and we withdraw.

But according to Wallis the great practitioners of real social change--he names Martin Luther King and Gandhi as examples--understood something extremely important.  They knew that you don't change a society by merely replacing one wet-fingered politician with another.  No, if you want real change, you don't change the players.  You have to change the direction of the wind itself.

Wallis argues that when you change the wind, when you transform the debate; when you recast the discussion; when you alter the context in which political decisions are  made, you change outcomes.  Moving the conversation around a critical issue to a whole new place, you open up possibilities for change never dreamed of before.  And, he observes, you will be amazed at how fast the politicians adjust to the change in the wind; how quickly they adapt.  Change the direction of the wind, and you change the outcomes because the politicians making the decisions change. A couple of recent examples:

Earlier this year we were treated to the unfolding debacle in Terry Schiavo's case.  A family was attempting to make the sorts of end of life decisions that face practically all families at one time or another, in one form or another. As with many families in these difficult circumstances, there were strong differences of opinion between Terry's parents and siblings and her husband.  The trial judge--the one dispassionate and steadying influence who, incidentally, had been sitting on this case for some 15 years--accorded the husband the right to determine Terry's fate based on her wishes expressed during her lifetime--the substituted judgment standard that we are familiar with. 

But, we all know that was not the end of it.  Buoyed by constant media attention and hype, Terry's case became a national battle ground between the right to life and the right to death with dignity; between the rights of parents and the rights of spouses in end of life decisions; between those who cast themselves as representing the good side of the force versus those accused and accursed of representing the dark side; between good and evil; between God and the devil.

And, of course, the folks with their wet fingers held high in the air, sensing blood in the water, jumped into and swam, en mass, to the fray.  In what can only be described as a feeding frenzy for votes, they held press conferences and prayer vigils.  They made speeches. In a country where over 36 million of their fellow Americans are not assured of enough food to lead  active, healthy lives, and under the guise of promoting a so-called "culture of life," they railed on the floor of the Congress about Terry Schiavo starving to death.  They recalled Congress men and women from their home states to pass special legislation to give the federal courts jurisdiction in what was clearly a state matter.  The President flew specially from his Texas ranch to Washington to sign this legislation.  Proceedings were filed in the federal courts and were lost and were appealed and were re-filed and re-appealed and were lost again. 

The courts followed the law; the courts respected the privacy and autonomy rights of Terry and her husband while giving the parents their day in court. 

And all the while the wet-fingers were teasing the wind; gauging public sentiment; expecting that there would be a ground-swell of righteous indignation and religious froth that would propel those on the right side to even greater positions of power and governance--venturing that their ideology would be king of the hill at the end of the day.  They took the opportunity to accuse the courts of being activist and of legislating from the bench--indeed some even proclaimed that there shouldn't even be courts; that Congress could take over the functions of that branch.

And, then, Terry died.  And guess what.  The people weren't impressed.  In fact, they were appalled.  Ordinary citizens were offended that the wet-fingers had invaded a family's privacy for obviously political purposes.  They found out that many of the wet-fingers had made end of life decisions in their own families--decisions that did not involve artificially extending a life that was no more; decisions that were accomplished in the privacy of the family without the intervention of the government.  The people found out about the abuse of power by elected officials.  And, the people wanted none of it.  They went out in droves and made living wills, and end of life declarations.  They wrote letters to the editors and they condemned the hypocrites with their wet-fingers in the air.  The people changed the wind.

And where are those politicians now?  Well they're flogging some other cause.  But have you heard any more about Terry Schiavo and feeding tubes and special laws being passed to allow the government to intervene in these private matters.  No, of course not, the wind has changed and it's not blowing in that direction any more.  The politicians have moved on.

Another example comes from my home state.  Last winter our Montana Supreme Court handed down an opinion requiring that same sex domestic partners working for Montana's university system be accorded the opportunity to purchase health insurance corresponding to that enjoyed by heterosexual couples.  Not surprisingly, a number of politicians and political and religious action groups weighed in on this case.  Many of the arguments focused on the sanctity of marriage--although this was not a gay marriage case at all--and on morality and family values.  The University System itself vigorously defended its policy, which was grounded in persons being either married by ceremony, declaration or common law.  The University System rejected arguments that the case really was about an aspect of the employment relationship and economic equity in the work place.

This was a hard-fought, high profile case, which, as it turned out, was widely reported in the national media.  Ultimately, our Court ruled in favor of the plaintiffs--in a red state that enacted an anti-gay marriage constitutional amendment in 2004.  And, predictably, we heard the usual charges of activism, etc. In the legislature a number of anti-court bills were proposed.

Yet, a mere three weeks after the Opinion was handed down, the University System approved a same sex insurance policy. That wasn't necessarily surprising because that's what the decision contemplated.  The thing that struck me, however, were the statements made in support of the new policy by the governing body of the University System.  Statements about putting one's feelings about lifestyles aside and doing what was right as the employer; statements about how people, whoever they are, should have health insurance if they were willing to pay for it; statements that the new policy would enhance the University's ability to recruit and retain employees; statements that the University was following the lead of many large corporations in not limiting health insurance benefits to heterosexual couples; statements that a larger self-funded insurance pool would be more stable.  All of those justifications are true and, in fact, were advanced by one or another of the plaintiffs.  But, from their public statements, one would think that granting same sex couples the ability to purchase health insurance through their employment had been the University's idea from the beginning.

It's gratifying to see the change it attitude, but the point I want to make is that in 21 days one court decision changed the landscape of the discussion from one of saving the institution of marriage--which never was the issue--and about the University's prohibition on same sex couples purchasing health insurance, to one of the advantages of providing all people equal benefits for equal work regardless of their gender orientation.  Indeed, other public employers around the state have now followed the University's lead.

In a sense, nothing had changed; the institution of marriage was--and is still is--as strong or as fragile as it ever was, depending on the perspective of the parties to the marriage.  But, in another sense, everything has changed.  The debate has been transformed; the discussion recast; and the context in which political decisions are being made has been altered. The outcome changed because the wind changed directions and those responsible for the political decision quickly adapted and embraced the change.

And finally, think for a moment on how one small black woman changed the wind when she refused to give up her seat on a bus to a white man.  And how, in the aftermath of legal challenges to racial discrimination, courts were, once again, condemned as activist for simply upholding civil rights legislation and the inherent equality and dignity of our fellow human beings.
As I already noted, there is much criticism of our state and federal court systems these days.  Indeed, seemingly, for many it has become a mark of honor, a testament to one's adherence to religious zeal, to one's sense of family values, and a symbol of one's patriotism to demonize courts and judges.  We've heard it time and time again:  Our courts are out of control; judges are activists; they don't interpret laws they make them.

I suggest precisely the opposite is true.  Our courts are very much in control of the third branch of government--a branch that is, lest the wet-fingers forget--co-equal with the executive and legislative branches.  Our courts are very much in control of interpreting and enforcing our state and federal constitutions--those documents, lest the wet fingers forget--that enshrine the fundamental rights and values that each of us--including the wet fingers--enjoy.  Our judges are not activists; but they actively protect the rights of our citizens from the tyranny of the majority and from persons, institutions and governments that disregard the civil liberties and rights we all are guaranteed.  Our courts are very cognizant of being the last resort of our citizens for protecting a most fundamental human value--justice.

And as to the charge that courts shouldn't make laws.  Well, of course they do.  As most law students come to realize by the end of their first semester, every decision handed down by a court of competent jurisdiction becomes the law of that case, and if a decision on appeal is rendered, it becomes, as well, the law of precedent, that binds no less than any statute passed by the legislative branch.

And where would our country be without strong courts and independent judges dedicated to making decisions that are grounded in something more than the winds of political expediency?

There would be no right of judicial review were it not for a Court willing to protect the separation of powers in Marbury v. Madison.  Constitutional standards would not have been applied to criminal trials because Powell v. Alabama would not have been decided in the 1930s.  There likely would be no broad right to assemble in public forums because the Court would have declined to make law in Hague v. CIO.  Poor people would not have the right to travel from state to state, because Edwards v. California would not have struck down California's anti-Okie law in 1941; the children of Jehovah's Witnesses would be forced to salute the Flag, because the court in West Virginia v. Barnette would have thought it unpatriotic to rule otherwise in 1943 during WW II; African Americans would not be able to vote in Texas primary elections, because the court in Smith v. Allwright would have deferred to the legislature which passed  'white primary' laws.  In 1952, the court in Burstyn v. Wilson would have thought it offensive to the religious values of many and would not have ruled that the First Amendment prohibited state censorship of a movie which the censor had labeled sacrilegious.  Black children would still be going to class in segregated schools, because the Court would have been 'and in fact was) labeled 'activist' for taking on pervasive racial bigotry and segregation in Brown v. Board of Education in 1954.  And in the 1960s what Court concerned about being labeled 'soft on crime' would have applied the exclusionary rule to the states in Mapp v. Ohio; or would have ruled that poor people had the right to counsel in Gideon v. Wainwright; or, in Miranda v. Arizona , that suspects of crime had to be advised of their rights to counsel and to remain silent before being interrogated.

A Court that felt obligated to protect the status quo would not have decided New York Times v. Sullivan against a public official who could not prove actual malice by a newspaper that published a story critical of him.  Such a court would not have applied the 'one person, one vote' formula to state elections in Reynolds v. Sims.  Only an activist and immoral Court  with no sense of family values would have created from a penumbra of rights in the Constitution a privacy right for married couples to purchase contraceptives, in Griswold v. Connecticut.  And similarly, it was an obviously activist Court in Keysishian v. Board of Regents that decreed that making teachers take loyalty oaths violated the First Amendment; and, in Loving v. Virginia that people had the right to marry someone of a different race; and, in King v. Smith that the equal protection clause protected a woman receiving public assistance from a rule that required her to be married to the man she was living with; and that held in Goldberg v. Kelly that welfare recipients were entitled to notice and the opportunity to be heard before their benefits were cut off.

Judges with their wet fingers held high in the air testing the political winds would not have decided the Pentagon papers case against the government; would not have ruled that the death penalty arbitrarily and capriciously applied violated the 8th Amendment.  And, such a Court, most certainly, would not have held that women have the right to make their own reproductive decisions and choices in Roe v. Wade; and, in Lawrence v. Texas , that gay men and lesbians have the right to have sex without the government's interference.

The list of decisions is endless.  Indeed, it is hard to envision a civil right or liberty that is not the product of some Court that, at the time, was demonized; was labeled; and was attacked by politicians and others whose wet fingers told them that the winds of public opinion were blowing in the opposite direction. 

Yet, it is these same rights that we now take for granted.  These Court decisions by active judges who would not be intimidated, transformed the debate and recast the discussion.  These decisions altered the context in which political decisions were and are made; and these decisions changed outcomes.  These courts and judges moved the conversation around a critical issue to a whole new place and opened up possibilities for change never dreamed of before.  And sensing the change in the wind, the wet-fingered politicians adapted and moved on.

There are three practical points that I hope you will take away from these remarks.

First, these landmark, wind-changing cases would have never reached the Court without the attorneys whose vision, determination and zeal compelled them to push the envelope; to step outside the box; to advance and argue for the a new hypothesis and an untested theory.  Attorneys who not just saw what was, but who dreamt what could be.  Despite the wet fingers' rhetoric to the contrary, Judges cannot and do not pull cases and issues out of thin air.  There must be a case and justiciable controversy; issues and arguments must be raised and litigated in the trial court; they must be competently and zealously appealed. We don't get to write the script.  The practicing bar is the critical link between the wind as it is and the wind as it might be changed for the better.  Judicial independence is meaningless unless litigators give the courts and judges something to be independent about.

The second point follows from the first; at the core of these cases is a plaintiff.  The importance of the person or organization who is injured or aggrieved and who is willing to go to court to seek a remedy cannot be exaggerated.  In each of the cases I mentioned there was a plaintiff.  There was a person and in some cases an organization that had a claim and was willing to litigate it--to fight to the death for justice, as it were. 

In her book, The Life of the Law , Laura Nader says this:

. . . the life and death of the law derive from the plaintiff, and [] this fact is nowhere more important perhaps than in our democratic society.  Regardless of whether anthropologists have been able to decide on a strict definition of law that is universal, we have been able to document the universal presence of justice forums.  The search for justice is a fundamental part of the human trajectory, although the meaning of justice and its forms varies.  Feelings of wrong and right are ubiquitous, as are feelings of injustice. Indeed psychologists have argued that the justice motive is a basic human motive that is found in all human societies and is part of many, if not all, human interactions . . . the direction of law is in large measure dependent on who can and wants to use the law, a user process that may expand and contract with the changing political winds.

I suggest that, in the changing political winds of our new century, of our consumer society, and of globalization, our citizens must not lose access to their courts; their rights of redress must not be restricted out of a meaningful existence; their constitutional rights must be zealously protected.  Each of us must have the opportunity to be a plaintiff; because if we lose that right, then, ultimately, we will all be defendants.

The third point is one I have already touched upon.  A strong and vibrant court system and an independent judiciary is crucial to our democracy.  The third branch of government must be more than simply an adjunct of the other two.  Every attorney who really cares about our system of justice must stand and be counted when the time comes to elect or appoint judges.  The stakes are immense, for we will get judges who share the vision of the law as the protector of our fundamental rights and values as citizens; we will get judges in the tradition of those who stood against popular opinion and political expediency in the decisions that I have mentioned; or we will get ideologues who test the political winds with their wet fingers during the elective and appointive process and, ultimately, before each decision is made.  In short, we will get political hacks.

Retiring Justice Sandra Day O'Connor eloquently summed it up in her remarks in 2003 to the Arab Judicial Forum in Manama, Bahrain:

Judicial independence is not an end in itself, but a means to an end.  It is the kernel of the rule of law, giving the citizenry confidence that the laws will be fairly and equally applied.  Nowhere is this interest more keenly exposed than in the judicial protection of human rights.  Judicial independence allows judges to make unpopular decisions.  Federal judges in the United States have at times been called upon to stand firm against the will of the majority.  For instance  the 1954 Supreme Court in Brown v. Board of Education, which declared that separate educational facilities for children of different races are inherently unequal, provoked a firestorm of criticism in much of the country.  The decision, however, was a crucial moment in the recognition of civil and political rights in the United States.

And my challenge to the bar is one to the judiciary as well.  For whatever it is worth--and frankly I don't think much of the decision--the law of the land as handed down in another landmark decision, Republican Party of Minnesota v. White, gives judges the right to speak out--not promising their vote mind you, and in my own personal set of values not even announcing their position on issues that may come before the court.  There is no prohibition, however, against judges speaking up in defense of our profession, the need for judicial independence, and against those who would destroy our system of justice and subjugate the third branch of government to the other two. 

Too often judges fail to speak out on these issues.  In truth, we never really had to before.  But in the last decade that has changed.  We owe it to the Constitutions we have sworn to uphold and to the rights of the citizens we have sworn to protect to not remain silent in the face of the attacks that are being leveled against lawyers, judges and the courts.  I, for one, am no longer willing to stand by and mutely witness the demise of our system of justice.

In closing, I do not intend my remarks to be ones of despair.  They are ones of concern, most certainly, and they are a call to arms.  But they are ones, too, of encouragement and hope. 

In his commencement address to the 2005 graduating class at the Montana School of Law, Michael S. Greco, President of the American Bar Association, urged a Renaissance of Idealism in the legal profession.  He demanded that we not forget to do justice and to remember that we are members of a noble profession.

It is idealism, after all; the striving for perfection in an imperfect world; the goal of equal protection under the law and justice for all, that must drive us in these modern Dark Ages.  There will always be those with their wet fingers probing the air.  But they will not change society for the better.  History confirms this truth.

There will be a Renaissance; I am convinced of that.  And, the leaders of that Renaissance will be those with the courage, the fortitude, the zeal and the idealism to change the wind itself.

Thank you.