23rd Annual Goldmark Award Luncheon
2009 Charles A. Goldmark Distinguished Service Award recipients Brad Diggs and Washington Appleseed were honored during the Goldmark Luncheon on February 13, 2009 at the Sheraton Seattle Hotel. Pulitzer Prize winner Linda Greenhouse gave the keynote speech and legal aid attorney Joe Morrison shared a client story.
Accepting the award for Washington Appleseed was Paula Littlewood, President Washington Appleseed and Executive Director, Washington State Bar Association
I'm proud to be a lawyer.
And I'm proud to work in my profession for my profession every day as Executive Director of the Washington State Bar Association.
So it might surprise you to learn that when I returned to law school to pursue a career in law, I had no intention of practicing law after graduation. For me, I was attracted to the discipline of the law because I saw it as an essential tool for helping to solve society's problems through policy work.
My guess is that for many of you in the audience, my story resonates with you -- because almost every law student enters law school with the goal of "saving the world" - or changing it significantly anyway.
While serving individual clients on a daily basis furthers this goal every day, we also know that the law can be used to make broad reaching changes on a policy level to help numerous people at once.
So let me introduce you to Washington Appleseed -- which is one of a network of sixteen non-partisan, non-profit public interest justice centers in the United States and Mexico -- dedicated to building a just society through education, legal advocacy, and policy expertise.
Washington Appleseed advances social justice by bringing together volunteer lawyers and community partners to develop systemic solutions to community needs.
Working alongside our partners in the civil legal aid community, Appleseed's efforts focus on addressing the root causes of issues, moving up the stream to the source of the problem, then working to produce practical solutions.
Time today does not allow me to introduce each of the committed and creative board members who lead our organization, but I would like to ask those who are here today to please stand.
I would also like to acknowledge the mainstay of our organization -- our newly appointed Executive Director, Marvin Stern - and our fabulous Senior Fellow Diana Stone.
Marvin joined Appleseed in September and comes to Appleseed with a long history of commitment and dedication to social justice and Diana has been with us practically since Washington Appleseed's inception.
I would also like to take this opportunity to say a few words about our founding leadership - Sue Donaldson and Brad Diggs.
An attorney and former public official, Sue Donaldson is the Founder and former Executive Director of Washington Appleseed.
Four years ago Sue was approached by the National Office of Appleseed about establishing an office in Seattle.
After launching Appleseed on its current path, she is now working as a volunteer at Washington Appleseed on projects relating to early learning and transitioning out of foster care -- as well as developing an ongoing tribute to former board President Brad Diggs.
Brad served as the first president of Washington Appleseed and was an almost full-time volunteer in the last year of his presidency assisting Sue in any and all tasks.
As many of you know, Brad passed away last summer after a long battle with cancer.
Brad liked to say that while the goal of social justice is not unique to Washington Appleseed, the methods of Washington Appleseed are unique:
- Examining issues;
- Going upstream and figuring out game changing systemic strategies; and
- Using the powerful skills of volunteer attorneys.
Under Brad's leadership, with pro bono attorneys from Davis Wright Tremaine and Foster Pepper, Appleseed engineered a private placement on behalf of the YWCA that provided significant funds - almost 30 million dollars - for 250 units of transitional housing in Snohomish County.
Another project headed by Davis Wright Tremaine attorney Michelle Radosevich resulted in the passage of a Working Families Credit law last year that allows for the rebating of sales tax to low-wage workers - this new law has the potential to impact 350,000 working families in Washington.
These are just two of many projects accomplished under Brad's watch.
In the coming year, Washington Appleseed plans to continue its work with the Seattle King County Asset Building Collaborative -- which is working to create mechanisms for those who might not otherwise have access to financial services achieve greater stability and success.
We will also be working with volunteer lawyers and community partners to help further policy solutions to both the mortgage foreclosure crisis facing Washington families as well as alternatives to the predatory practices of the payday lenders here in Washington.
Washington Appleseed is young and a new player in the social justice community in Washington.
We are therefore especially honored - and humbled - to receive the Legal Foundation of Washington's 2009 Charles A. Goldmark Distinguished Service Award.
On behalf of Washington Appleseed, I would like to thank the LFW board for this honor and - inspired by the dedication and vision of our founding leaders Brad and Sue -- we will continue our commitment to develop systemic and lasting solutions to our community's needs.
We look forward to working with all of you. Thank you.
Accepting the award on behalf of their father were Matthew Diggs, Assistant United States Attorney, Seattle, and Benjamin Diggs, Hogan & Hartson, San Francisco
My brother, Benj and I are honored to accept this award on behalf of our dad.
The Legal Foundation of Washington was an organization close to my father's heart, as he served as a past president of the board. This meant of course, he was named as a defendant in the infamous IOLTA Case. While this may have been no great privilege for him, imagine how cool it was in law school to have your father as a named party in the school-wide moot court case, and not only that, but he was on the side that won! More importantly, though, Dad believed in the Legal Foundation Washington's mission of marshalling resources to aid those with the greatest need and the fewest options. Dad would have been particularly honored to receive the Charles Goldmark Award from such a fine organization.
When our Dad stepped down as the Managing Partner of Davis Wright Tremaine in 2002, Washington Appleseed provided a means for him to put his significant talents and energy to work for at-risk groups in Washington State. After 30 years at DWT, dad had the knowledge of what made law firms run and, though he would say he was stymied at times, what made lawyers run. What made them work and what challenges they encountered. He understood the importance of pro bono work that inspired and energized attorneys: litigators and business lawyers alike. He understood that in an age when many law firms focused on the bottom line, that with the right vision and support, they could - at the same time -- be engines for powerful and positive change in the world through the law.
Dad was confident that lawyers could effect change. That they could impact the world in important and meaningful ways. And not just that but also that lawyers had an obligation to impact the world around them. Washington Appleseed provided a means for him to do that, and to ally his talents with an organization that channeled his energy and talents, and multiplied them with the help of so many dedicated people, to affect the lives of those in need.
We could always count on our dad for thoughtful, practical guidance, decisive action, and firm conviction in doing things the right way, not the easiest way or the one that ruffled the fewest feathers. He could be stubborn (and he may have even butted heads with some of you here today), but it was usually a thoughtful, considered stubbornness, born of careful observation and a big heart.
Dad threw himself into his pursuits and passions full-tilt. As the greatest of these was his family, my brother, mom and I were fortunate to be on the receiving end of much of the energy, humor, and determination with which he lived his life. But there was lots to go around. He brought to Washington Appleseed the same wit, intellect, integrity, and reassuring competence that were the hallmark of all he did.
As he strove to meet the challenges he confronted, Dad motivated those around him to do so as well. One of his former partners wrote of him, "In the same way that Brad believed he could become a better lawyer, leader, and person, he inspired others to think that they could grow as well. He mentored so many of us in the best possible way - without ever needing either the relationship or the resulting benefits officially recognized."
We appreciate the opportunity to recognize him today, and Matt and I would also like to thank the many people who donated to Washington Appleseed in our father's memory. Our family has been truly overwhelmed by the outpouring of generosity.
We'd also like to thank Dad's brother Briar, and his wife Heidi for being here today from Missoula. And his brother in law, Stephen Hut. Most importantly, we would like to recognize his wife of 37 years, our mom, Peggy Diggs.
Faced with a difficult life situation, Dad chose to spend his time and energy working for people and causes that lacked an advocate. We are proud of him for that. And we are proud of the way he did it, as it was uniquely Brad Diggs. Not in a glamorous way; by doing work that was often thankless, but necessary. We know the work meant a great deal to him, and we have been humbled and honored to learn how much it has meant to others.
We are very proud of Dad today and we always will be. Thank you.
To open the luncheon, Joe Morrison of Columbia Legal Services, Wenatchee shared the compelling story of his client, the Mattawa Child Care Provider
I have the privilege of sharing a story about my all-time favorite client group. These clients are a group of primarily Spanish-speaking woman who operate state-licensed child care businesses out of their homes in Mattawa, Washington. At the time, the Department of Social and Health Services ("DSHS") licensed the homes of these women so they could provide care for up to 12 children. For those of you who've never been to Mattawa, take I-90 east until you cross the Columbia River, hook a right for 20 minutes and you're there. Now these women play a simple, but crucial role in this small town of 5,000 - they provide a safe, learning environment for hundreds of children whose parents work in the fields and orchards that surround the area.
In 2002, based on a false complaint that was racially motivated, DSHS investigators raided the homes of these women and hauled off five (5) years of original business records and other personal documents without ever obtaining a warrant. Now, I call it a "raid" because the DSHS investigators divided up in teams of 2-3 men, went unannounced to their homes, banged on their doors, and demanded immediate entry. They waived around a piece of paper, which they never translated, and told them it was a court order. Once inside, some banged their fists on tables or threatened to rip up licenses if the women did not immediately supply the records. In other homes, the investigators followed the women down the halls and into the privacy of their bedrooms as records were gathered out of their clothes closets. All of this was done while the woman were caring for small children and their husbands were gone working in the fields.
You can imagine the trauma this caused and the rumors that spread around the town and in the local media when the investigators left.
And what about that "court order" the investigators had in their hands? It was nothing more than an administrative subpoena, rubber-stamped by a non-lawyer supervisor in Olympia. Moreover, the subpoena requested copies of business documents, not originals. DSHS agents also failed to follow their own internal policy that normally gave businesses 14 days to provide copies.
Well, when the women contacted our office in Wenatchee we knew we had a big case on our hands. My colleague, Ty Duhamel and I immediately contacted the private law firm of MacDonald Hoague & Bayless ("MHB") and enlisted the team of Kay Frank, Tim Ford and Josh Alex. With MHB on board, we filed a two-part civil rights lawsuit: the first part was to collect damages for the individual women; the second part was a class action to protect the 5,000+ child care providers around the State to make sure this type of raid never happened again.
Fast forward four years, over 850 electronic filings in federal court, and a few gray hairs later and we had obtained a proposed settlement from the State. The settlement consisted of almost $2.5 million in damages and several key reforms to the investigative wing of DSHS. DSHS agreed that future investigations would provide written, advanced notice in both English and Spanish that would advise providers that they had the legal right to refuse entry into their homes unless the investigator had a warrant signed by a judge.
So, with the proposed settlement in our hands we were off to Mattawa to meet with our clients to explain the details. Our meeting spot was the gym of the local elementary school where we had met many times before. As I drove down with Ty, I wasn't sure what to expect, but I was hoping for a big celebration. We got there early and met Kay in the parking lot then began to set up folding metal chairs down one end of the gym. At the other end we set up tables for the clients to put the wonderful home-cooked food they traditionally brought to such meetings. I didn't have a lot of heavy lifting to do that night - my role was to take notes and read the body language of the clients while Ty and Kay explained the settlement.
I took my seat on the side of the gym up on the stage and pulled out my note pad, but after a few minutes I found myself getting caught up in the moment. As I watched the scene from my perch, I saw the clients listening attentively to Ty and Kay as their rights were being explained. Behind them, on the opposite wall of the gym was a huge American flag that must have taken up half the wall - that symbol of freedom that is backed up by our constitutional provision. In particular, the constitutional right that says, "No home shall be invaded without authority of law." As I was soaking in this scene, my mind began to wander and I thought that if I were an artist, I would paint something that was a cross between Norman Rockwell meeting Diego Rivera.
But, I wasn't an artist; I was a note-taker and I wasn't doing a very good job. As the presentation finished, we were caught off guard because instead of cheers and applause, there was dead silence. For a group that was normally quite lively, this was not a good sign. Had we said something wrong? Had we given away the farm in the negotiations? Nobody was quite sure. Finally, one of the women suggested that the lawyers go down to the other end of the gym and start eating in order to give them time to discuss the proposal. So, Ty, Kay, and I walked down to the other end and began to nervously spoon food onto our plates making idle chit-chat while trying not to look too hard over our shoulders to see what was transpiring. The clients were definitely engaged in a serious debate, but we were too far out of range to hear the discussion. After what seemed like an eternity, one of the clients came over and told us they had reached a decision.
The three of us put down our plates and walked back to where the clients were. When we arrived, the spokesperson of the group stood up. She had in her hand a single sheet of yellow-lined paper and told us that on the paper was a list that contained all the signatures of the providers. With that list the providers wanted to signify that 100% of the women were in support of the agreement and wanted us to move forward with final approval before Judge Shea. Their signatures also represented their approval for all the hard work the attorneys had done, so they wanted to thank us from the bottom of their hearts for taking on the case and believing in them.
Well, we ended up having a wonderful meal together that night, although the gathering was rather subdued - no big celebration. We exchanged stories about our children and shared many hugs. We then gathered our things and headed for the parking lot. On the drive home to Wenatchee, I was trying to absorb all that had happened that night. While I was feeling a little disappointed at the client reaction, I began to consider the gravity of the case and came to the conclusion that their reaction was completely appropriate under the circumstances. These women not only carried these incredible meals into the gym that night, they also carried with them deep scars from the raid that occurred in their homes back in 2002. For them, this was just a first step in the healing process from that horrible day.
I also began to think about what our role was as attorneys in the case. I thought that hopefully we were able to do two things for these women. First, I hope that with the monetary settlement, we were able to give back to them a measure of their dignity that was taken away by those investigators. Second, and perhaps more important, I hope we were able to allow them to write another chapter to this story. What we did was make sure the story didn't end with the raid - that the story continued. And the story is that a small group of extremely committed women with the courage to stand up against the power of the State (the same State that held their business livelihoods in the balance) could make lasting change not only in their own lives, but also in the lives of child care providers all over the State of Washington. Hopefully, that is the story that will be told to all the young children in the town of Mattawa and child care homes across the State.
Thank you.
Foundation Secretary, Michele Radosevich of Davis Wright Tremaine followed the story with an appeal to the legal community in support of the Campaign for Equal Justice
Good afternoon. We gather today at a troubled time in our nation. People are losing their jobs in record numbers-and with their jobs, any meaningful access to our justice system. At the same time, their legal needs are increasing-to cope with foreclosures, evictions, family problems, and all the other legal concerns that predictably follow job loss.
The times cry out for more resources. And yet, two of the funding sources we have traditionally relied upon are also severely threatened by these times. IOLTA revenues have been hard hit by low interest rates, a moribund real estate market, and generally slow business activity. At the same time, the State of Washington is facing a budget deficit larger than any in its history and cuts to legal services are virtually certain.
And so we turn to you, the legal community. Our new president has suggested that we meet these hard times with a renewed sense of cooperation and responsibility. I don't know about you, but as I listened to the Inaugural Address, I felt a strong sense that I could and should do more to make the country and the world a better place. In reflecting on Obama's call to service since that day, it seems to me that the best way for a lawyer to do this is to recommit to our justice system, to using our resources-both skills and money-to help get justice for those in need.
So I'm here today to ask you to take a pro bono case, if you can, and whether you can take a case or not, to give money to support the pro bono infrastructure. And I'm asking you to give more than you would normally give and in addition to what you already give or plan to give to the Campaign for Equal Justice. Because the need has never been greater. And because, as I'm sure everyone in this room believes, we have a responsibility to the justice system itself and to all those who need it.
We lawyers are fortunate to have been given the skills and training to make a real difference in people's lives. And while there are ups and downs in our practices, we are generally well compensated for our work. We take life's little luxuries for granted. Travel, health clubs, lattes, all the books we can read and then some. And in the good times, we can have all of that and still give money away.
In troubled times, however, we are not immune. I'd be surprised if many of us were not concerned about business in the coming year. But as Martin Luther King Jr. has said: "The ultimate measure of a person is not where he or she stands in moments of comfort and convenience, but where he or she stands at times of challenge and controversy." These are such times.
I'd ask you to write a check, use a credit card, or make a pledge that hurts just a little, because a lot of other people are hurting far more.
Thank you.
Keynote Speech "What Judges Know" by Linda Greenhouse of Yale Law School
On June 25 of last year, the Supreme Court ruled that the death penalty was an unconstitutional punishment for the crime of raping a child.[1] The vote was 5 to 4. Justice Anthony Kennedy's majority opinion relied in considerable part on the conclusion that there was a general consensus in the country against punishing this particular crime by death, and that capital punishment for the rape of a child was therefore "cruel and unusual" within the meaning of the Eighth Amendment.
In support of this conclusion, Justice Kennedy noted that of the 36 states that have the death penalty, only six include the rape of a child as a capital offense. That meant that in 44 states - 30 of the death-penalty states plus the 14 without a death penalty - a child rapist could not be sentenced to death. And Justice Kennedy attached significance to the fact that when Congress expanded the reach of the federal death penalty law during the mid-1990's, child rape was not included among the new capital crimes.
This case, Kennedy v. Louisiana, was among the most high-profile cases on the Supreme Court's docket during the last term. The decision was quite controversial, and was closely dissected, both by the dissenting Justices and outside critics. The Court had spoken, however, and that seemed to be that.
But not so fast: It turned out that the majority had made a factual error, a rather glaring one, in coming to its conclusion. Within days, a startling fact emerged. It turned out that less than two years earlier, Congress had extended the death penalty to child rape as part of a revision of the sex crimes section of the Uniform Code of Military Justice.[2] True, the provision applied only to crimes committed by military service members, and the relevance of this provision to the Court's Eighth Amendment's analysis was far from obvious. But what was obvious was that the majority's assertion that there was no federal law on the books that made the rape of a child a capital offense was simply untrue.
As I mentioned, Kennedy v. Louisiana was a high-profile case. It was on the Court's docket for months. Yet not only did the parties to the case fail to bring this recent legislation to the Justices' attention, neither did anyone else. Among those who let the Court down was the federal government itself, which is usually quick to weigh in, through the Office of the Solicitor General, in any Supreme Court case that could conceivably have an impact on a federal statute or other federal interest. The government took no position and filed no brief in the case. In fact, the law was brought to light by a civilian specialist in the military death penalty who runs a blog devoted to the work of the United States Court of Appeals for the Armed Forces.[3]
There followed a flurry of activity, as the both the state of Louisiana and the United States Solicitor General filed briefs asking the Court to reconsider its decision.[4] On Oct. 1, after two months of back-and-forth pleadings, the Court denied the request over the dissenting votes of Justices Thomas and Alito.[5] The five justices in the original majority, including Justices Souter and Ginsburg, filed an explanatory statement. They noted that the military had long had a death penalty for rape -- although no execution for that crime had been carried out since 1961 - and that the effect of the 2006 law was quite unclear. "In any event," they said, "authorization of the death penalty in the military sphere does not indicate that the penalty is constitutional in the civilian context."[6]
This convoluted tale raises, in unusually dramatic and concrete fashion, the question I'd like to pose today. How do judges know what they know - or what they think they know? As Tocqueville observed, this is a society that turns to the courts to resolve its most pressing disputes. Judges play a significant role - some might say an outsized role - in the life of the country. We expect them to know the law, and they do. But resolving legal disputes is not an abstract exercise. Judges have to apply the law - indeed, they have to decide what law applies - to the cases before them, cases that do not arrive as abstract propositions but rather as messy human conflicts that were not amenable to any easier or less expensive resolution than going to court.
I thought to discuss this topic here because of a Supreme Court decision that this organization knows well, and that fascinated me when it was pending and decided during the Court's 2002 Term. That case was Brown v. Legal Foundation of Washington[7] which, as everyone in this room knows, is the case in which the Supreme Court reversed course and upheld the IOLTA[8] concept against a right-wing takings challenge. Let me briefly remind you of the context in which this case reached the Supreme Court.
As you know, IOLTA programs have been a target of the right since their inception because of their role in empowering poor people to assert their legal rights. (Sadly, the current economic crisis has proven a more dire threat to IOLTA than right-wing rhetoric and constitutional attacks ever were, but that is obviously a different story, one without a happy ending so far.) Five years before the Brown case reached the Supreme Court, the justices, by a 5-to-4 majority, had cast an ominous shadow over IOLTA with a decision called Phillips v. Washington Legal Foundation.[9] In this decision, with an opinion by Chief Justice Rehnquist that was joined by Justice O'Connor, the Court held that for purposes of analysis under the Takings Clause, the interest earned on client funds held in IOLTA accounts was the "private property" of the client. The decision left open the dispositive issue of whether the use of the interest to support the public programs to which IOLTA channeled these funds amounted to a Fifth Amendment taking. But it seemed quite unlikely, given the Court's analysis of the private-property question, that the answer could be anything but "yes."
The stakes, of course, were enormous: as the Brown case reached the Supreme Court, IOLTA programs in the 50 states were generating some $160 million a year, or about 15 percent of all money from private and public sources that were being spent in the country on legal services for the poor.[10] So something quite interesting happened. Supporters of IOLTA made it their business to make sure that the justices understood the real-world stakes that the case presented, beyond the intricacies of takings doctrine. An impressive cross-section of the country's legal and political establishment - the American Bar Association, the chief justices of the 50 states, the national League of Cities, the attorneys general of 36 states - filed briefs urging the Court to save IOLTA.
State high courts had initiated IOLTA, and the brief of the state chief justices spoke with particular authority. It invoked the music of federalism: "There are few arenas in which the States have stronger interests than in the administration of their own judicial systems."[11] And it pulled no punches:
At a time when governmental institutions across the land - both state and federal - are routinely criticized for economic waste and bureaucratic inefficiency, it is ironic that the States would be attacked for devising an efficient approach to reducing the wasteful costs and fees associated with the maintenance of lawyer trust accounts, a cost savings that is directed toward improving the quality of justice available to state citizens in state courts. Indeed, the posture of this case indicates that petitioners may be motivated more by the desire to undo IOLTA programs nationwide than by the desire to recover the "few dollars and some-odd cents" of interest attributable to their portion of the pooled account, interest that inevitably would be exceeded by the accounting costs of attempting to divide it among all the nominal or short-term depositors.[12]
Supporters of IOLTA needed to pick up only one vote in order to turn the earlier 5-to-4 decision around, and they got it. Justice O'Connor switched sides, silently joining the 5-to-4 majority opinion by Justice Stevens. Justice Scalia was left to sputter in dissent that the Court's endorsement of "the government's larcenous beneficence" marked the emergence of a "Robin Hood Taking" concept in Compensation Clause jurisprudence.[13]
What do judges know? There is little doubt that the briefing in the Brown case informed Justice O'Connor of a context she had not fully appreciated when she voted with the earlier majority.
If you posed the question, What Do Judges Know? to a random group of people, most would probably think you were referring to scientifically or technologically complex questions or to the economic assumptions that go into deciding an antitrust case. But I hope I've demonstrated that the question goes well beyond a specific field of technical knowledge. Cases that call on specific fields of expertise of course present challenges to the generalists who serve as our judges. But that is really not the heart of the matter. All kinds of cases, including the mundane, call on judges to base their judgment on facts or on conclusions based on assumed facts. Were the police reckless when they gave chase to a speeding driver and forced him off the road and into an accident with devastating injuries? "Reckless" means reckless under circumstances, and what were those? And how does a judge know?
Trial judges, who are often referred to as finders of fact, of course hear testimony from witnesses, some of whom may be experts, and reach their conclusions in time-honored fashion according to the burden of proof that applies in the type of case before them. The "preponderance of the evidence" standard in most civil cases simply means "more likely than not." Judges quickly become accustomed to making these evaluations.
The real challenge comes at the appellate level, where judges are bound by the record created below, either in a federal agency or at trial, and can set aside only those factual findings that are "clearly erroneous" or "unsupported by substantial evidence." a very difficult burden for someone challenging a lower-court or agency decision to meet. How comfortable should we be with the "clearly erroneous" standard? I can describe one area where I know that appellate judges are distinctly uncomfortable: immigration law. The United States is deporting would-be immigrants by the hundreds of thousands annually, and the great majority of these individuals are unrepresented by lawyers when they appear before the immigration judges who will decide their fate and who process cases at the rate of about six a day.[14] Adverse decisions by the immigration judges can be appealed to an administrative body called the Board of Immigration Appeals. Here, too, most immigrants are unrepresented. Due to so-called "streamlining" changes imposed by the Bush administration, this board largely abandoned the practice of sitting in panels of three members and of issuing written opinions. Rather, single officials, acting alone, hear these appeals and decide them summarily, without making a written record or explaining their decisions. The result has been an explosion of immigration appeals to the Federal courts of appeals. These appeals tripled to about 12,000 a year over a five-year period - roughly one in every three Board of Immigration Appeals decisions is now appealed to a federal appeals court.
Immigration cases now make up nearly half the docket in two of the biggest and busiest federal appellate circuits, the Second and Ninth. It is not only the workload that disturbs the judges who must handle these cases. The problem is that in so many of these cases, many of which involve potentially life-or-death issues of asylum, the appellate judges have so little to work with. The decisions of the Board of Immigration Appeals are presumed to be correct, and can be set aside - other than for some error of law - only if they are based on "clearly erroneous" findings. Judges have told me that they frequently feel at a gut level that the findings may well be erroneous. But that is something short of "clearly erroneous." Judge Richard Posner of the Seventh Circuit complained in a published opinion in 2005 that "the adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice,"[15] and there is little doubt that he is correct. But still, Board of Immigration Appeals decisions are being affirmed by the federal appeals courts at a rate of 85 percent. One judge told me, on a panel that I moderated last summer at the American Bar Association annual meeting, that when he thinks about the immigration cases on his docket, he has trouble sleeping.[16]
How do judges know what they know?
It might be tempting to assume that if judges could only hear a tape or watch a film, factual ambiguities would be dispelled and judges would know what they need to know. The Supreme Court actually conducted such an experiment in a case decided two terms ago. The question in Scott v. Harris,[17] which I alluded to earlier, was whether a police officer acted reasonably in chasing and forcing a speeding driver off the road. The driver, a teenager who was not suspected of any offense other than speeding, was rendered a quadriplegic by the ensuing accident and sued the police officers for violating his right to due process. A video camera mounted on the dashboard of the police car recorded the chase, and the Supreme Court put the six-minute video up on its Web site as part of the majority opinion, which concluded that the fleeing driver was so obviously a menace to public safety that "no reasonable juror" would have quarreled with the officer's decision to use deadly force and "take him out."[18] And indeed, the video showed a scary drive at breakneck speed on a dark and winding country road. (Equally scary is the denouement, as the driver's car is rammed by the chase car after the officer gets authorization to "take him out;" the driver loses control, and his car plunges violently down an embankment.)
The vote in Scott v. Harris, however, was not unanimous. It was 8 to 1. The dissenter was Justice John Paul Stevens. Certainly Justice Stevens is a reasonable man-or at least, as reasonable as his Supreme Court colleagues. He had, in fact, learned to drive many years ago on dark and winding roads, and he did not view the driver's behavior as justifying deadly force. Professor Dan Kahan of Yale Law School was sufficiently intrigued by this case to conduct a social science experiment, showing the tape to a diverse sample of 1,350 people and studying their reactions.[19] While it turned out that most of the respondents thought the Supreme Court was correct, not all of them did, and the demographic portraits of the two groups proved to be quite interesting. Those who agreed with the Court were most likely to be white, male, and from the South or West. Those who disagreed were more likely to be nonwhite, female, and from the Northeast. In other words, responses to the video on which the Supreme Court based its conclusion turned out to be, at least to some measurable degree, culturally determined. So who is a reasonable juror, or a reasonable Justice? How do judges know what they know?
Let me conclude with some musings on judicial behavior in cases concerning abortion, a subject that to a remarkable degree has been the province of the courts. Two years ago, the Supreme Court upheld a federal law called the Partial-Birth Abortion Ban Act of 2003.[20] This decision, Gonzales v. Carhart,[21] was based on a remarkable collection of premises indulged in by the 5-to-4 majority and the author of the majority opinion, Justice Kennedy. One was that "it is self-evident" that a woman whose doctor performs an abortion by the method that this statute criminalizes "must struggle with grief more anguished and sorrow more profound" when she realizes what has happened.[22] What is remarkable here - and I won't even try to top the eloquence of Justice Ginsburg's dissenting opinion - is not only the patronizing assumption that reduces a woman seeking to terminate a pregnancy to a child-like state of ignorance, but also that Justice Kennedy offers no citation, no factual backup, for his assertion about what goes on in a woman's heart and head. It is simply "self-evident." Justice Kennedy, and the majority, buys into the myth of the existence a "post-abortion" syndrome that has been abundantly discredited in the psychological literature, as well as in briefs presented to the Court by medical organizations as long ago as 1989.[23] An editorial in the medical journal Obstetrics and Gynecology criticized Justice Kennedy for "his rejection of evidence-based practice by failing to include a single medical reference in support of his opinion."[24]
Finally, let me offer a more heartening example of a judge's response to the freighted subject of abortion. The year after Justice Sandra Day O'Connor joined the Supreme Court, the Court was faced with deciding the constitutionality of restrictions on access to abortion that had been adopted by the city of Akron, Ohio. The majority declared these unconstitutional on the basis of Roe v. Wade, which had been decided just 10 years earlier.[25] Justice O'Connor, confronting her first abortion case on the Supreme Court, dissented in an opinion that was a broadside attack on Roe itself. Noting that premature infants were being saved at younger and younger gestational ages, "it is certainly reasonable to believe that fetal viability in the first trimester of pregnancy may be possible in the not too distant future," Justice O'Connor said. "The Roe framework, then, is clearly on a collision course with itself," she concluded, as "the point of viability is moved further back toward conception."
Whatever one thought about Roe v. Wade as law, Justice O'Connor's "reasonable" belief was simply incorrect as a matter of obstetrics and neonatology. There is no prospect of fetal viability moving back into the first trimester. The medical community made it its business to inform Justice O'Connor of this fact six years later, in a subsequent case in which the Court's continued adherence to Roe v. Wade appeared to be directly at issue. In this case, Webster v. Reproductive Health Services,[26] the American Medical Association, the American Academy of Pediatrics, along with other groups filed a brief explaining the existence of an "anatomic threshold" at about 24 weeks of pregnancy that, due to the incapacity of the fetal lungs, makes survival impossible even with mechanically-assisted respiration. "Improvements are not expected in the foreseeable future," the brief concluded.[27] Neither in Webster nor in any future opinion did Justice O'Connor refer to this brief. But she never mentioned the so-called collision course of Roe v. Wade again, and she came to play a key role in preserving the constitutional right to abortion.[28]
A good judge is not necessarily one who knows everything, but one who is willing to learn.
[1] Kennedy v. Louisiana, 07-343, 554 U.S. __ (June 25, 2008).
[2] Section 552(b) of the National Defense Authorization Act, Pub. L. No. 109-163, 119 Stat. 3136, 3263 (2006). "For an offense under subsection (a) (rape) or subsection (b) (rape of a child), death or such other punishment as a court-martial may direct."
[3] See posting to CAAFlog, http;://caaflog.blogspot./com/ (June 28, 2008, 18:25 EDT). See also Linda Greenhouse, In Court Ruling On Executions, A Factual Flaw, The New York Times, July 2, 2008, A1. It was this article, prompted by the blog post by the civilian lawyer, Dwight Sullivan, that brought the problem to public attention, including the attention of the lawyers in the case, the federal government and, presumably, the Justices.
[4] Kennedy v. Louisiana, 07-343, Petitioner's Petition for Rehearing, filed July 21, 2008; Motion for Leave to File Brief and Brief for the United States as Amicus Curiae Supporting Petition for Rehearing, Kennedy v. Louisiana, 07-343, filed July 28, 2008.
[5] Kennedy v. Louisiana, 07-343, 554 U.S. ___ (Oct. 1, 2008), order denying petition for rehearing.
[6] Id., statement of Kennedy, J. at 3.
[7] Brown v. Legal Foundation of Washington, 538 U.S. 216 (2003).
[8] Interest on Lawyer Trust Accounts
[9] Phillips v. Washington Legal Foundation, 524 U.S. 156 (1998).
[10] See Linda Greenhouse, What Got Into the Court? What Happens Next? 57 Maine L. Rev. 1 (2005), at 3.
[11] Washington Legal Foundation v. Legal Foundation of Washington, No. 01-1325, brief of Conference of Chief Justices as amicus curiae in support of respondents, at 6.
[12] Ibid., at 29-30.
[13] Brown v. Legal Foundation of Washington, Scalia, J. dissenting at __.
[14] See statistics collected in Recent Cases -Immigration Law, 119 Harvard Law Rev. 2596-2603 (2006).
[15] Benslimane v. Gonzales, 430 F.3d 828 (7th Cir. 2005).
[16] Comment by Judge Robert A. Katzmann, panel on "The Adjudication Crisis in Immigration Law," American Bar Association annual meeting, Aut. 10, 2008.
[17] Scott v. Harris, 127 U.S. 1769 (2007).
[18] Id. at 1776.
[19] Dan M. Kahan, Donald Braman, and David Hoffman, Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism. Forthcoming, Harvard Law Rev. Vol. 122. See also, Linda Greenhouse, The Counter-Factual Court, forthcoming, University of Louisville Law Rev.
[20] 18 U.S.C. Sec. 1531 (2000 ed., Supp. IV)
[21] Gonzales v. Carhart, 127 S. Ct. 1610 (2007).
[22] Id. at __.
[23] Webster v. Reproductive Health Services, 492 U.S. 490 (1989), amicus brief of American Psychological Association, at 19-20.
[24] Editorial, The Supreme Court Joins the Multispecialty Group Practice of the Congress and the President, Obstetrics and Gynecology, Vol 110, No. 2 (August 2007), p. 226.
[25] Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983). Roe v. Wade, 410 U.S. 113 (1973).
[26] Webster v. Reproductive Health Services,
[27] Webster v. Reproductive Health Services, Inc., brief of American Medical Association et al., at 5-8.
[28] See, e.g., Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).