This is the second part of a five-part essay. The first part described the Democratic Party’s vision for the American judiciary, using the language of the Democratic members of Senate Judiciary Committee during the 2017 confirmation hearings of Judge Neil Gorsuch as Supreme Court justice. This second part describes how the Democratic Party’s vision of justice has played out in judicial systems in other countries. The third and fourth parts will quote Judge Gorsuch’s responses during his confirmation hearings in which he rejected the Democratic vision while supporting the United States Constitution. The fifth part will describe Judge Gorsuch’s work to make huge reforms in the law in favor of the “little guy,” efforts ignored by the Democrats.
The Democrats claim that they want judges, at the level of the U.S. Supreme Court but also at the level of the Circuit Courts (the intermediate federal appeals courts) and the District Court (federal trial courts), to show empathy to the little guy. The Democrats don’t mean, however, that judges must manifest sympathy towards, an emotional concern for, or an understanding of, the parties’ plight. Neither do they mean that a judge should extend certain courtesies, or act in a civil manner, toward parties or to their lawyers. (The last is required by the code of conduct for judges. (See Rule 2.8(B) of the American Bar Association’s Model Code of Judicial Conduct: “A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court staff, court officials, and others with whom the judge deals in an official capacity.”))
If they meant empathy, the Democratic Senators would have heard, and approved of, the empathy shown by nominee Gorsuch as a federal judge of the Tenth Circuit when, as both the nominee and witnesses on his behalf testified, he wrote opinions in language that the parties, not just their lawyers, would understand, and when he treated their oral and written arguments with respect, each receiving careful attention.
No, what the Democrats want are results, not empathy – or not empathy unless it provides the right results! When the Democratic Senators asked nominee Judge Gorsuch about (a handful of) particular opinions he wrote, they were cases in which the Senators wanted different results. When the Democratic senators asked nominee Judge Gorsuch whether he would be bound by U.S. Supreme Court decisions with which they agreed, they want results. When they asked him whether he would not be bound by U.S. Supreme Court decisions with which they disagreed, the Democrats want the results.
Just prior to his nomination, nominee Judge Gorsuch had co-authored a 900-page book (a potential “doorstop” he called it) entitled Law of Judicial Precedent (2016). In his review of the book, Professor Paul F. Rothstein of Georgetown Law has said, “[The editor] Garner and his stellar panel of judges have written the bible on the role of case decisions and precedent in law.” Importantly, for our purposes, the book was not a collection of chapters by individual authors. Rather, the nominee and his 12 co-authors all signed on to all of the contents of the book. Thus, the Senators could have explored with nominee Judge Gorsuch any part of the book, about any aspect of the law concerning judicial precedent. For all of their professed interest in determining whether nominee Judge Gorsuch would or would not follow Supreme Court precedent, they showed no interest in the identities of the co-authors or the arguments or analysis in this book – a book which was the first lengthy treatise on this subject -- so important to the judiciary and the rule of law -- in more than one hundred years.
For your information, the co-authors were: Bryan A. Garner, Distinguished Research Professor of Law at Southern Methodist University, and 11 appellate judges, at the federal and state levels (in alphabetical order): Carlos Bea (9th Cir.; appointed by President George W. Bush); Rebecca White Berch (retired 2015 from Arizona Supreme Court after having served a five year term, 2009-14, as Chief Justice; elected by Associate Justices); Harris L. Hartz (10th Cir.; George W. Bush); Nathan L. Hecht (Chief Justice, Texas Supreme Court; appointed by Gov. Perry); Brett M. Kavanaugh (D.C. Cir.; George W. Bush); Alex Kozinski (9th Cir.; Reagan); Sandra L. Lynch (1st Cir.; Clinton); William H. Pryor, Jr. (11th Cir.; George W. Bush); Thomas M. Reavley (5th Cir.; Carter); Jeffrey S. Sutton (6th Cir.; George W. Bush); and Diane Wood (7th Cir.; Clinton).
As George Will would exclaim: Well.
When the Democrats apply their professed concern for “the little guy” – a benign term for their “identity politics,” to the American judicial system, “identify politics” becomes “identity justice.” The Democrats argue that a judicial decision should be made on the basis of the identity, the demographic profile, of the parties. I simply do not understand how Democrats understand what it means to say “No one is above the law,” “We are a government of laws, not men,” or “Equal justice under law.” Identity politics corrupts American politics and government. (See Sen. Orrin Hatch, “Identity Politics Threaten the American Experiment,” Wall St. Journal, May 19-20, 2018, p.A13). Identity justice corrupts the American judicial system. Law, under the Democratic vision, would no longer be recognizable as law.
Take a look at the following table which is my attempt at stating which parties to a lawsuit the Democrats say should win, and which parties they say should lose.
Favored by Democrats
Persons without health insurance
Union members; employees
Plaintiff trial lawyers
African-American, Hispanic, Native American
Urban residents Individual small investors in stocks and bonds
Pensioners Employers; the Government
Elderly; persons with physical or mental disabilities
Tenants (unless they’re large)
People who have not learned English
Environmentalists Teachers LGBT Special Interests (anyone who belongs to any association that employs a lobbyist) Hollywood Nonbelievers Consumers
Not favored by Democrats:
Persons with health insurance; Health insurers
Men Citizens and Legal Residents Gun owners (Candidate Obama in 2008 asserted that they “cling” to their guns)
Corporate and wealthy investors in stocks and bonds
Employers; the Government
Property owners (unless they’re small)
People proficient in English
School Officials; Parents
Non-Communists (Vietnamese, Cuban, South Korean, Taiwanese; NATO)
Israel Special Interests (anyone who belongs to any association that employs a lobbyist) Believers (those who “cling” to their religion per Candidate Obama in 2008)
Married women with children
If your observation is that this table is too simplistic, too stereotypical, I would agree, but I would also respond that the Democratic Party vision is simplistic. Furthermore, the Democratic vision gets complicated, very complicated, as soon as one considers a lawsuit where a white male employee is suing his employer owned by a black woman. Or if a white woman is suing a black man. And on and on.
It gets more complicated still when we seek to determine whether a plaintiff or defendant is a “small” or “large” business, or is a “rich” or “poor” consumer or patient or employee, or is or is not Native American (like the debate over Senator Elizabeth Warren). How much blood makes one Native American? White? African-American? Vietnamese? See for example, Tara Bahrampour, “As Whites Find Black Roots [in DNA testing], Identity Gets Tangled,” Washington Post, Feb. 7, 2018, p.1.
The Democrats must, to be honest, to be logical, assert that, contrary to Rule 2.2 of the Model Code of Judicial Conduct (“A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially”), a judge, in deciding a case is obliged, at the outset of a case, to take a good, hard look at the identity of the parties: their sex, sexual orientation, ethnicity, citizenship, religious affiliation, education, employment history, corporate status, income, place of residence, political affiliation, etc. These factors will be used to help a judge determine how the wind is blowing, which types of people will be on “the right side of history.” Each party must gain “points” and the points, not the law, will determine the winner of the lawsuit. The opposing parties’ counsel can debate orally or in writing for the judge how many points his or her client should have in order to generate the judge’s empathetic, result-oriented decision.
In such a system, the precedent created by any decision would not depend on the law, but on the identity of the parties, the demographic profile of the parties.
The law, as we experience it, establishes expectations in a relationship. Under the Democratic vision for the American judiciary, why would a white male enter into a contract, of any sort, with an African-American female if he would expect that he would lose any lawsuit for her breach? Do we go from a time when a white male is always to be believed against a female of any color to a time when a female suing or being sued by a male is always right? Before answering, consider the 2006 Duke Lacrosse case.
This system of “identity justice” -- what the Republicans, what Americans who adhere to the U.S. Constitution would not call justice – has been used in other countries. I set out below short descriptions of systems of identity justice in the Soviet Union, Communist China and North Korea.
Soviet Union System of Identity Justice
“Martyn Latsis, an official of the Cheka, Lenin’s secret police, in a 1918 instruction to interrogators, wrote: ‘We are not waging war against individuals. We are exterminating the bourgeoisie as a class….Do not look for evidence that the accused acted in word or deed against Soviet power. The first question should be to what class does he belong….It is this that should determine his fate.’” --David Satter, “100 Years of Communism—and 100 Million Dead,” Wall St. Journal, Nov. 7, 2017, p.A17.
“Lenin explained partiinost, party spirit, most succinctly. Asked in the Duma whether one of his decrees was in accordance with justice, he answered: ‘Justice? For what class?’” --Angelo M. Codevilla, “The Ultimate Argument for Roy Moore,” American Spectator, Nov. 21, 2017,
Communist Chinese System of Identity Justice
“Launched by the government in 2012, [China’s ‘social credit system’] vows to “’make trustworthy people benefit everywhere and untrustworthy people restricted everywhere’ by the time it is fully implemented in 2020.” --Maya Wang, “China’s Chilling ‘Social Credit’ Blacklist,” Wall St. Journal, Dec. 12, 2017, p.A19.
North Korean System of Identity Justice
In his A River in Darkness (2000 in Japan, 2017 in U.S.), author Masaji Ishikawa describes his native country. “Especially eye-opening is his explanation of songbun, North Korea’s apartheid system under which every citizen is assigned a status based on his perceived loyalty to the regime. A person’s songbun status determines his station in life, including where he lives, how much education he receives and, mostly cruelly of all, how much food he will get.”
--Reviewed by Melanie Kirkpatrick, Wall St. Journal, Feb. 7, 2018, p. A13.
If you don’t like my examples, I could find you more. History, including current history, is replete with them: Cuba, Venezuela, Vietnam, Cambodia, Nazi Germany, the French Reign of Terror, etc. ad nauseam. See Robert Conquest, The Great Terror: A Reassessment – the 40th Anniversary Edition (2007); Robert Royal, The Catholic Martyrs of the Twentieth Century (2006); Stephane Courtois, et al., The Black Book of Communism: Crimes, Terror, Repression (1997).
The Democrats do not distinguish between the role of a legislator who investigates and weighs various policy options and a judge. The Democrats do not distinguish between the role of a lawyer who is duty-bound to advocate zealously for his or her client and a judge who must strive to be impartial. Now, we all know that, human nature being what it is, there is no perfection. (See Robert M. Sapolsky, “When Justice Isn’t Really So Blind,” Wall St. Journal, Aug. 12-13, 2017, p. C3 (regarding a June 2016 law review article testing whether judges will or will not use precedent depending on the personal characteristics of the defendant.) But that is different from dropping the ideal in favor of the Democratic vision. What kind of judge do we want? One who tries, even if he or she fails, to get the law right and apply it well to the facts? One who tries to ignore who the parties are. Or one who tries to get the parties “right”, and therefore the result “right”?
The Democrats want a judge to decide for “the little guy,” whom the Democrats perceive as “a good guy,” and to decide against the “bad guys.” A lesson on this point of view is given to the Democrats by Sir Thomas More in the 1966 film A Man for All Seasons when More argued that he would be willing to protect the Devil, the ultimate “bad guy,” from the good guy if that is what the law provided:
William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
Roper: Yes, I’d cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned ‘round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!
More: When a man takes an oath, he’s holding his own self in his own hands like water, and if he opens his fingers then, he needn’t hope to find himself again.
Not all demographic attributes of a party in a lawsuit are inherited, but many of them are, such as gender, race, ethnicity. I am reminded of Ben Franklin’s adamant opposition to any privilege obtained through inheritance, referred to in his day as “aristocratic.” For example, he objected to the existence of the Society of the Cincinnati. Gordon S. Wood, The Americanization of Benjamin Franklin 218 (2005). Although his international and national accolades were many and deserved, Franklin would “refer to himself as ‘B. Franklin, printer.’” Walter Isaacson, Benjamin Franklin: An American Life 3 (2004).
You may think that the Democratic vision for the American judiciary is, like Franklin, opposed to privilege. Not so. The only difference between the Tories of the 1770’s and the Democrats of the 2010’s is what sorts of people should be deemed privileged. Hmmm, how does that work, you ask? How can the poor, women, Native Americans, etc., be deemed privileged?
Consider the analysis by St. Augustine, Bishop of Hippo (now Annaba, Algeria) (350-430 A.D.). It may surprise you to learn that, during a part of each day, Augustine worked as a judge – not only matters of a religious nature, but also of a civil nature -- and his rulings in civil matters were binding under Imperial law on the parties. He reflected on this part of his work when delivering a sermon on Psalm 25 (26). The portion of the Psalm relevant to our purposes reads, in the Latin translation he used at the time: “They in whose hands are injustices, their right hand is filled with bribes.” In his sermon, he told the congregation that judges should not take bribes, bribes in the form of good opinion – even from poor litigants:
Bribes need not always be gifts of money, or expensive presents…What does taking a bribe mean ? It means praising a man for the sake of such gifts, and flattering him, and buttering him up with smooth talk, and giving judgment in his favour against the truth. To give a wrong judgment, even if only for popularity’s sake, is to take a bribe, indeed the emptiest of bribes. The man who stretches out his hand to take it, clutches at the worthless judgment of men’s tongues, only to forfeit the good judgment of his own conscience….
Two men for example bring some dispute to the unfortunate bishop; each of course says that his case is just, each is quite certain he is in the right. So they bring the matter to the bishop to judge. Both love him dearly before he gives judgment, both say, “Only decide as you think proper, and curse me if I quarrel with your judgment.” It must go against one of them when he does give it, but neither yet knows which. If however he tries to please both, then he is simply taking a bribe – the approval of men. For the sake of a word of praise which is finished and done with as soon as spoken, he loses something which is eternally spoken and never done with, the Word of God. He holds on to shadows and lets go of the solid Substance. But if he bears in mind the justice of God, the judge under Whose authority he himself sits in judgment, then he will give his decision against one of the parties. And then even if the loser cannot get a reversal of judgment, because the imperial law [of Rome] now upholds the Church’s judgments and allows no appeal from them, nonetheless he will look upon the judge with jaundiced eyes and say, “Gross favouritism. The other man was rich, and so he took a bribe from him, or was afraid of offending him.” If on the other hand judgment is given for the poorer party, then the rich man too says, “He took a bribe.” What, a bribe from a poor man? “Yes, for fear of its being said he oppressed the poor he oppressed justice instead, and decided clean contrary to the truth of the case.” You see, whatever judgment he gives, if he doesn’t take bribes, someone will say that he does. (Sermon on Psalm 25 (26), date not given, Rev. Edmund Hill, S.J., trans., Nine Sermons of Saint Augustine on the Psalms (1959), pp. 70-72.)
We, in our day, like Augustine and Franklin in their days, must reject the Democratic vision of justice. Nominee Gorsuch did so, a subject to which I turn in the third and fourth parts of this series.
Spero News columnist James M. Thunder is an attorney with Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C., Washington, D.C. (Supreme Court Justice Gorsuch practiced with the firm 1995-2005.) He has authored over 200 items including several law review articles. He was the editor of the seven-volume U.S. DEPARTMENT OF JUSTICE MANUAL (1977), the co-author of FEDERAL CHEMICAL REGULATION (BNA 1997), and a major contributor to K. Chris Todd, ed., 225 YEARS (1789-2014): THE UNITED STATES ATTORNEYS FOR THE SOUTHERN DISTRICT OF NEW YORK (2014). This article is part 2 of a 5-part series.