The Briefing 09-14-17

Part I

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A judge comes clean about how he actually judges

One of the issues we need to face in terms of how the judiciary works is the fact that judges are after all human beings. That means they are the complete complex of what it means to be human, and it means that we cannot separate a judge from the judge’s performance as a member of the judiciary. That means that every single individual judge brings what that individual person is to the task and to the act of serving as a judge. We sometimes tend to forget that and think of the courts as somehow operating like computers able on one hand to have the facts of the case as input and then somehow to go through a constitutional legal review and then to come out on the other side with no reference to judicial philosophy or even the experience of personality of the judge. That’s not fair.

That’s not fair in any arena of life, but it also points out how important it is to pay attention to who will eventually sit on the court. And that’s true at every level, but in this case, the highest responsibility falls to the federal courts in this country and amongst the highest of those responsibilities is service on one of the circuits – that is the circuit U.S. Courts of Appeal— that after all hear the cases just short of the United States Supreme Court. And in many cases those U.S. circuits, the courts of appeal, are the final court that will ever hear certain very important cases.

A wake-up call on this issue came in the form of an article that ran at the New York Times on Tuesday. The headline of the article by Adam Liptak, the sidebar column for the New York Times, was,

“An Exit Interview With A Judicial Firebrand”

Now the use of the term judicial firebrand indicates something of an unusual personality an unusual character serving as a federal judge. The judge at the center of this article is Judge Richard A. Posner, whose restless intellect says Adam Liptak,

“withering candor and superhuman output made him among the most provocative figures in American law in the last half-century…”

Judge Posner, we need to note, recently announced his retirement from the court. He had been appointed as a federal judge to the United States Court of Appeals for the Seventh Circuit in Chicago by President Ronald Reagan in the very first year of his first term in 1981. He is thus served ever since 1981 on this federal court and has by his own estimation written over 3500 judicial opinions during this time. Before his judicial appointment, Judge Posner was a law professor. He was particularly known for participating in a school of law that held to a combination of law and economics to the link between the law and economic behavior as a way of understanding the rightful application of the law. That particular school of legal thought has often been identified with the city of Chicago, with the University of Chicago and now also with this judge who sat on U.S. Circuit Court of Appeal for so long in Chicago.

According to this interview, Judge Posner has recently come to the conclusion that he needed to retire as a federal judge. And furthermore, he wanted to do so so that he could level a particularly powerful critique against the courts and against the entire American legal system. Seeing it as he says now from the perspective of someone who was powerless up against a very powerful legal system. But what’s most important for our perspective is what is revealed in this interview about how Judge Posner changed his mind about the purpose of the law, the function of a judge and how a judge should understand and interpret law and Constitution during the more than three decades he sat on the federal court. As Liptak writes, Judge Posner, 78,

“he was a prominent law professor who was among the leading figures in the movement to analyze legal problems using economics.” As Liptak says, “In emphasizing social utility over, say, principles of fairness and equality, he gained a reputation as a cold, calculating conservative.

Now it’s interesting that Liptak juxtaposes those goods of social utility over against fairness and equality, but what’s even more interesting is what’s reflected in the next paragraph. I read,

“That changed over time, and his recent opinions on voter ID laws, abortion, same-sex marriage and workplace discrimination based on sexual orientation have been decidedly liberal.”

Speaking of his own change of mind, Judge Posner said,

“The things I used to be interested in — economic issues in the law, for example — they don’t play a big role in the work of this court. Gradually, those interests sort of fell by the board.”

 

Part II

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The influence of pragmatism in the culture and its understanding of truth

During his long tenure on the court, Judge Posner was known as a writing judge not only writing judicial decisions, but an almost annual series, an almost endless series of massive books often published by academic publishers and often read by people far outside the judiciary. As Liptak says,

“He wrote books about law and literature, sex and reason, the impeachment of President Bill Clinton, the 2000 election recount and, after the Sept. 11 attacks, national security.”

But in the most important part of this article, I read,

“He called his approach to judging pragmatic. His critics called it lawless.”

The judge said,

“I pay very little attention to legal rules, statutes, constitutional provisions. A case is just a dispute. The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?”

Now I wanted you to hear that direct quote because in it is almost everything wrong with the federal judiciary today, and what we have here is a judge blatantly, candidly, straightforwardly saying I don’t really care about the law or even about the U.S. Constitution. I decide what I think is right and fair, and I come up with an argument in order to make it stick. Judge Posner actually became even more candid. I read the next paragraph,

“The next thing, he said, was to see if a recent Supreme Court precedent or some other legal obstacle stood in the way of ruling in favor of that sensible resolution.” In the judge’s words, “And the answer is that’s actually rarely the case. When you have a Supreme Court case or something similar, they’re often extremely easy to get around.”

Here you have a federal appeals court judge recently announcing his retirement who now tells the public that he has substituted his own wisdom as to what he thought was right in a dispute for a given situation and then he if necessary found a way even around the cases and decisions of the U.S. Supreme Court, and he made his way without reference to the law or to the Constitution as binding authorities in order eventually to get where he wanted the law to go. He contrasted his own approach with what he called formalism. He said,

“There is a very strong formalist tradition in the law. Judges are simply applying rules, and the rules come from somewhere else, like the Constitution, and the Constitution is sacred. And statutes, unless they’re unconstitutional, are sacred also.”

Now what we need to see there is that you have a federal appeals court judge telling us that the problem is in believing that the rules come from something outside himself, his wisdom and his court even specifically criticizing here the belief that the Constitution is an outside authority or that statutory law is an outside authority. But remember statutory law is what is established by the legislature and signed into law by the executive. Here you have a recipe for absolute judicial tyranny. There are many lessons here for us to learn, but one of them is the sad lesson learned over the last several decades in particular. You can have a President of the United States committed to a very formalist understanding of the law and the Constitution, President Ronald Reagan for example, but once a president makes a nomination to the federal court and once the Senate affirms that nomination that individual is there for a lifetime appointment and as is so often the case they change their minds and change their judicial philosophy after they get to the court.

Here an issue looms larger in terms of the Christian worldview, and that is the fact that Judge Posner even in this article refers to his understanding of truth and his understanding of the role of the judge and the law as pragmatic. He refers to his philosophy as a form of pragmatism. And here Christians need to understand that pragmatism is one of the main rivals to the Christian understanding of truth. The Christian understanding of truth holds that truth is an objective reality, true because it actually corresponds to reality. Pragmatism that emerged in the late decades of the 19^th century and the early decades of the 20^th century holds to the fact that truth doesn’t actually exist objectively.

William James in so many ways the father of pragmatism at Harvard University years ago said that truth happens to an idea. It doesn’t belong to an idea. At its core pragmatism holds to the fact that there is no objective truth. Truth is something that just happens to ideas. They happen to be true, maybe true for now, not true later, maybe true for you, not true for me. And here you have an understanding of truth and by extension understanding of law, politics and the role of the courts that is directly at odds with biblical Christianity.

But perhaps the most important thing for Christians to recognize is that pragmatism actually rules and reigns throughout much of America as the dominant understanding of truth and that helps explain what’s going on in so many college and university campuses and why so many people seem to have such a casual even subversive understanding of truth in terms of public conversation in public debate. I want to go back to Judge Posner’s words and let him have the final word in this story. I repeat, he said,

“I pay very little attention to legal rules, statutes, constitutional provisions. A case is just a dispute. The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?”

Part III

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Transgenderism goes to college: Women’s colleges struggle to define what it means to be a woman

Next, a couple stories linked together by the fact they both point to rampant confusion in America’s academic life. But in this case we’re not only talk about colleges and universities but high schools as well. First the colleges and universities, Collin Binkley wrote an article for the Associated Press this week. The headline is,

“Women’s colleges more welcoming to transgender students”

Now we talked about this before. Here’s the inevitable collision between the old worldview of feminism, especially ideological gender feminism, and the transgender revolution. You cannot hold to both of those logics, and the historic women’s colleges that have not only been reserved for women students but have also been traditionally several decades decidedly liberal those schools find themselves having to decide are they get old ideological feminism, which has been their defining mark now for over half a century, or are they going to hold to the LGBT revolution.

Well one of the interesting things to note is that the LGBTQ revolution tends to sweep every previous revolution away. So these historic women’s colleges that have from their very beginning limited their admission to women, who are clearly defined as biologically female, well all that’s now changed as the historic women’s colleges are finding some way to allow transgender women to be admitted and to continue as students. They have to because they have been completely subservient to the sexual revolution, and there is no place for them to stop or to exit from that revolution now.

But it’s really interesting to watch just how confusing all this can be. One of the so-called seven sisters of the historic women’s colleges actually put out an admissions guide which made very clear that one could be almost anything in terms of born male identifying as female, born female identifying as female, born female and admitted as a female but graduating as a male, the permutations went on until it became obvious that the only student who could not be admitted was a biological male identifying as a male. Any other possibility or permutation is welcome to apply.

Binkley’s story takes us to historic Wellesley College in Massachusetts, where we are told a student named Ninotska Love, who was assigned the identity of a boy at birth but now identifies as a woman, will be,

“one of the first transgender women to attend Wellesley in the school’s 147-year history.”

The story goes on to say that in Atlanta Spelman College became the latest,

“to say it will accept students who identify as women, ‘regardless of their gender assignment at birth.’”

But this story at the Associated Press indicates that many of these historically women’s colleges are still internally and externally struggling with how they’re to understand themselves with these new rules. Amongst the first of the historic women’s colleges to allow transgender women to be admitted was Mills College in Oakland, California that announced the decision just in 2014. We are told in the article that at Mills now 8% of more than 700 undergraduates identify as transwomen. Now the significant thing here is that the best information on the percentage of transgender persons in the United States is significantly less than 1%. But here we are told that in this one college 8% of the undergraduates identify as transwomen. Now that probably points to the fact that the school was so overwhelmingly and decidedly liberal in terms of its perspective in the first place.

The contradictions in these schools is made clear in the Associated Press article where I read,

“Still, alumnae of some women’s colleges have opposed the admissions change, saying it undermines the institutional mission to empower women. Leaders at some schools counter that women’s colleges were founded to educate those who have been marginalized because of their gender.”

Now that’s a big difference, and it tells you about the rival worldviews that are really in conflict here.

Part IV

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Why a dress code is never simply a dress code

The other story comes from Los Angeles where Priscella Vega reports,

“Some local high school students are challenging Burbank Unified’s dress-code policy, saying it is sexist against girls, and they are planning to survey parents, teachers and students on how to amend the policy.

This is the Burbank unified school district in suburban Los Angeles. We are told that according to the school’s policy,

“clothing must not ‘detract from the academic environment’ and cannot promote the use of illegal substances, alcohol and should be void of profanity and violence. Low-cut tops, spaghetti-strap shirts, short skirts and short shorts are not permitted, nor are beanies and hats.”

Now what’s at the center of this controversy? The fact that some of the girls in the school system are charging that since some of these rules, traditionally and logically, apply only to girls they’re thus unconstitutional and unfair. A female student number in Burroughs high school said,

“School is telling us female bodies are distracting, and it’s wrong.”

The issue came to the attention of the Burbank unified school district by Louie Kahn, identified as the young man who is the student body president at Burroughs High. He said,

“I’m a boy and it hasn’t affected me, but my job is to represent my constituents on campus. Many students feel it’s sexist and it needs language that is more neutral… Styles have changed and it’s time for an update to the policy.”

Well here from a worldview perspective we simply have to note it’s not so much that styles have changed but that the morality has changed. And also what has changed is even the ability of a school like Burbank United school district in California even to use language that refers to males or females. But fashion is never fully distinct from morality and that point was made emphatically clear by the principal at Burroughs High, Deborah Madrigal. In a statement in which she said,

“It’s hard for girls to find shorts that officially fit our dress code. It’s an older dress code, and you can’t buy shorts that long anymore — it’s hard for them to find the right shorts.”

The comprehensiveness of the biblical worldview helps us to understand why a dress code is never simply about a dress code, why fashion is never simply about fashion and why morality in the end can never be separated from the understanding of what’s really going on here.