Posted: March 07, 2006
Thank you for that marvelous introduction. And I want to thank you for your hospitality and for your graciousness in inviting me to be with you. We federal judges don't get out that often.
I thank you for the opportunity and the privilege to speak to such a distinguished group… Now, as it relates to what you do, I would observe something that struck me just two weeks ago. In the Harrisburg Patriot, which is a local newspaper where I come from, there was an item noting a concert featuring white supremacist music that was held less than eight miles from the State Capitol in Pennsylvania. It was called Uprise 2006 and it was held in a fire hall which was attended by 100 to 150 people dressed in black pants and boots with swastikas and other Nazi emblems. Attendance was not limited to residents of Pennsylvania, and the article in the Patriot indicated that cars with license plates from New York, New Jersey, Maryland, and Delaware were viewed in the fire hall's parking lot. I would suggest to you what is obvious, which is that this type of activity is “Exhibit A” for anyone in my state or in any other place who doubts the urgency of your mission, your essential mission. And so I am well familiar with, suffice it to say, and I have endorsed your essential mission. Your work is not only enormously valuable, but, sadly, it is all too necessary.
Now, on the subject of your mission, which according to the heading on your
web site is in part to secure justice and fair treatment for all, in some sense what you do and what I do as a United States District Judge are very similar, or should be similar.
I want to use my time this morning to talk to you about several things that are important to me, and that I know are important to you as well. They involve not only matters attending the separation of church and state, but the related concept of an independent judiciary as well. Because I've become at least temporarily well known, or infamous depending on your point of view, due to a certain case that I presided over last year, I know that you're going to want to hear some things about the Dover case, and I'll certainly accommodate that, because it's in part a pretty good story. What I've avoided doing and what I'm not going to do is to get into an excessive analysis of why I ruled the way I did. I don't want to bore you to death, but in addition, I put out a 139-page opinion. And for those of you who are having trouble sleeping, I'll get you copies so you can read the whole thing.
There's little I can say to make it more clear than I tried to in 139 pages. And it's usually bad form for judges to try to augment their rulings with public pronouncements and explanations. Our decisions are generally designed to stand on their own and they will either rise or fall based on those contents and not what we judges and lawyers refer to as post hoc explanations. And that's as it should be. If one of my decisions gets appealed, and they frequently do, I don't have the opportunity to go to the Court of Appeals and say "Gee, I know how this seems, but here's what I really meant by the decision." It is what it is.
As was pointed out during that gracious introduction, it's been just about four years since I was nominated to serve on the United States District Court for the Middle District of Pennsylvania. Now, I came to the bench with what some might call a fairly substantial political pedigree. I was an active Republican. I had been involved in politics for decades before that. I served in the administration of a Republican governor, my friend, Tom Ridge. I was at one time counted as a potential candidate for governor of Pennsylvania in 2002. In the face of that, I chose to, as it were, jump off the political bandwagon -- merry-go-round expresses it better -- and seek a federal judgeship. An odd choice, some believed, but it wasn't really that, because since my days as a young lawyer, I had always aspired to be a judge. I love my job, and I wanted to have a chance to handle matters of importance.
Now, that said, there is typically a limit to the importance of what we do at the trial court level. By December of 2004, I had decided some interesting cases as a district judge, but I had no idea, none whatsoever, about what was about to hit my docket. On that month, one day in December of 2004, I was driving home from my chambers in Harrisburg and I heard on a radio program that a group of parents had filed a federal lawsuit in my district against a School District in Dover, in York County, Pennsylvania, concerning its policy introducing intelligent design into science classrooms. Now, I think that I'm pretty well read and generally worldly wise, but I will tell you that at that very moment in December of 2004, I had no idea what intelligent design was. Boy, do I know what intelligent design is now!
I wondered whether the case would be assigned to me. That was a natural impulse, because it was filed within my court. And we have random assignments, so you never know. But the next morning, curious still after hearing the case and with some apprehension and understanding that it was going to be an important case, when I looked on my computer to see new case assignments, I saw that next to the caption Kitzmiller v. Dover appeared the initials JEJ, and that, of course, telegraphed to me immediately that the case had landed on my docket.
I was pleased, of course, to have assigned to me what looked to be such an interesting case, but I had no idea whatsoever, I will tell you now, what I was in for or how much attention the proceedings would garner, not just in this country, but as it would turn out throughout the world as well.
In January of last year, I conducted the first scheduling conference in the case in my courtroom. And it was my first exposure to the lawyers who would be involved in this case. I always try to explore settlement options with attorneys at the earliest possible date, but it was very clear to me that the parties were entirely polarized even at that time and that it was very unlikely that this case was going to settle. And in fact, at that early date it was clear that I had more lawyers in the case than I had parties. Now, I don't dislike lawyers, some of you may, but I practiced myself for 22 years before I became a judge. But at that point I was somewhat fearful because too many lawyers, like too many cooks, can indeed spoil the broth.
However, I will tell you that throughout the case, whether counsel for the ACLU or the Thomas More Law Center or the private attorneys who appeared in the case, the attorneys distinguished themselves. It was a privilege and a pleasure to have the lawyers before me.
It was evident that the lawyers had a very palpable sense that they were involved in something bigger and different than anything that they had ever experienced. As a result, I watched during the proceedings as some very good lawyers became even better. They took their game, so to speak, up a few notches because of the case they found themselves in. And for those of you who prefer sports analogies, it was at least a playoff game for them, if not the Super Bowl, and they knew that.
In September of last year, as you now know, we commenced the trial. It was, at times for me and I think for most of us who were involved in the trial, a rather surreal experience. As I noted at the outset, as judges, we labor most days in relative obscurity. The first day of the Dover trial, however, I arrived at the Federal Courthouse in Harrisburg to find it ringed with television satellite trucks, the hallways were jammed, and security, despite our best efforts, was clearly overloaded. We had electronic and print media from around the world present throughout the trial. We even had Charles Darwin's great-great grandson in attendance.
I can never see what is taking place in my courtroom before I emerge from chambers and take the bench, so I wondered what I would find. Well, when I emerged and as I walked up to take my seat on the first day of the Dover trial, I saw something that I had never seen before in my judicial career. I saw a courtroom packed wall-to-wall with high-tech gear, lawyers, parties, spectators, United States marshals, and a number of sketch artists. The sight of all this almost took my breath away. In fact, it took me a few moments to compose myself as the trial started. I had never seen anything like it.
When the plaintiff's counsel, Eric Rothchild, began his opening remarks, he used visual aids and he placed exhibits on a large screen that was set to the one side of the courtroom, and we had smaller computer screens set up at each of our stations. As Eric was talking, he put up a shot toward the beginning of his speech, his opening remarks, of some primates. And as I looked at the monkeys projected on the wall in the courtroom, I was gripped for the very first time with the thought that I might be presiding over something that, at least in its time, was viewed as not only historic, but was perhaps a newer version of the Scopes Monkey Trial. And I had a very palpable sense, a very curious sense, that I could be living history.
Despite all of the hoopla that attended the trial, we were able to settle down after that first day for a six-week trial that followed. Now, you've read about it and I won't try to review in detail here what took place, but suffice it to say that we concluded by early November. And the hard work of fashioning an opinion began. I rendered that ruling, of course, on December 20 of 2005.
But before and then after the ruling, some very curious things happened to me in terms of the media's reaction to what I wrote and to my work. These experiences are, I suppose, indicative of our times and they are, I think, examples of what can happen to judges in high-profile cases.
I will note that I had a choice to make in the beginning of the case as to whether or not I wanted to make myself available at all to the press, and some judges do and some judges don't. I decided that I would do that so long as I didn't discuss the merits of the case. And so I allowed certain reporters at times to interview me in chambers. This worked out well, save for some over-the-top questions, Oprah-like questions, if you will, that I got, such as "What's your favorite sports team? How many times a week do you work out?" And my favorite: "Who do you want to play you in the movie version?" For the record, that's the Philadelphia Eagles, six times a week, and Tom Hanks.
Now, I also became known during the trial for my occasional comments as asides which some, but not all, regarded as occasionally witty. These received great play in the media. Let me tell you that trials like this, despite their great public interest, have many boring stretches and anything that is remotely humorous is typically welcomed to break the stress and monotony of trial. And of course, your jokes are always funnier when you're the presiding judge. Particularly for the lawyers. They humor you as you make witty asides. And I do have a tendency to see many things, if not most things, in a humorous light. But I had to be careful and it was clear to me that I didn't want the trial to become the modern version of "My Cousin Vinnie." And then there is that negative role model for all of us who serve on the trial bench, poor Judge Ito. So I didn't want to be him either. I will tell you that's the primary reason I was asked by "Court TV" to allow the trial to be nationally televised and I declined that request. And I did sort of labor over that. But in my mind's eye, I kept seeing Judge Ito and I thought this is something that I didn't want to do.
After the trial concluded, on the plus side I had the rare privilege and pleasure of reading an article in The New Yorker Magazine by Margaret Talbot and she attributed to me the charm of a 1940's movie star and commented that I looked and sounded like a cross between actors Robert Mitchum and William Holden. My wife and children found that utterly hilarious. And further, because my law clerks, who are in their mid-twenties, to entirely deflate me by asking me "Judge, who exactly are Robert Mitchum and William Holden?" So it's a good news-bad news story.
The controversy which attended the release of my decision in December brings me, I think, to the primary point that I want to address during my remarks this morning, and this is the topic of judicial independence, and in particular how that relates to issues like the separation of church and state. Most, but not decidedly all, of the reviews of my opinion following release were good. Now, to be sure, we as judges do not rule based on a fear of bad press or public opinion. Notwithstanding that, I'd like to tell you that we neither read nor do we listen to what people write or say about us in the press; to state categorically that we don't do that would be wrong. We do. We're human and we're curious and so we do notice those things, as I did after the trial.
Accordingly, and in that vein, I found it notable that among those who disagreed with my decision was one Phyllis Schlafly. I'm sure that you know who Ms. Schlafly is and I’ll not try to characterize her beyond saying she is a conservative columnist and pundit. I don't know Ms. Schlafly and I assume based on her résumé that she's a fine person. However, under the banner "Judge's unintelligent rant against design," Ms. Schlafly authored a
January 2006 column and within her column she noted that, and I'm quoting here, that I "owed my position as a Federal Judge entirely to the evangelical Christians who pulled the lever for George W. Bush in 2002" and that I, I'm still quoting here, "stuck the knife in those who brought me to the dance in Kitzmiller versus Dover Area School District." Other than that, she really liked my decision. (Not really.)
Kidding aside, Ms. Schlafly obviously enjoys the same First Amendment right of free speech that we all do as citizens of the United States, and she's entirely free to disagree, as she most pointedly did, in my conclusions. Hers is a point of view as it involves the establishment clause and
establishment clause cases that many people share.
But the way that she conducted her analysis is instructive, and points out a problem which is pervasive and therefore threatens to, I think, tear at the fabric of our system of justice in the United States. Ms. Schlafly's column makes it clear that she views me as an activist judge of the very worst kind. Yet in her column and within other criticisms directed at my opinion, time and again writers would omit to note the role legal precedents play as they relates how judges decide cases that come before them. That is, as a trial judge, I must follow the law as previously established by the higher courts and in particular by the Supreme Court of the United States.
The premise of Ms. Schlafly and some others seems to be that judges can and should act in a partisan matter rather than strictly adhering to the rule of law. Now, to those who believe that judges must cast aside precedents and rule as according to an agenda, let me say that I believe that the public's dependence upon the impartiality and the integrity of judges is absolutely essential to its confidence in our system of justice. It is especially important for our citizens to understand that judges must be impartial and that the independence of the judiciary is premised on a judge's pledge of freedom from partisan influences.
In the context of the Dover case, there exists over a half century of strong legal precedents which have emanated from the Supreme Court and the intermediate appellate courts. Among other things, this history verifies and validates not only the separation of church and state, but also guides us as judges with respect to the test that we must apply to the factual circumstances as we find them.
Applied correctly, these tests direct us in our determination of whether an act by a governmental entity, in this case the School Board, is violative of the establishment clause. Now, I won't bore you with the case names or details, but suffice it to say that judges are constrained by their responsibility to interpret precedents that constitute the settled law of the United States.
That is precisely the task that I undertook in deciding the Dover case. Reasonable people may disagree whether I correctly applied those cases and precedents. However, I did not have the power – and Ms. Schlafly and others fail to mention this – I did not have the power to omit utilizing those tests, nor did I have the ability to invent tests other than those recognized by existing jurisprudence against which to measure the facts of the case.
Manifestly, I did what I believe all good judges must do, which is to approach the case without a political agenda or a bias or a predisposition or a thought that if a case is decided in a certain way, it will offend a political benefactor.
It's always risky business to divine what the founding fathers might think about current developments, but I'm certain, I'm entirely certain, that by deciding the Dover case the way that I did, I performed my duties as a district judge in exactly the way that the founding fathers had in mind when they created the Federal Judiciary in Article III of the Constitution.
In fact, I will submit to you that had I decided the Dover matter in a different way, I would have then engaged in just the kind of judicial activism which critics decry. That is, to have ruled in favor of the School Board in this case based on the facts that I had before me at the conclusion of the trial, I would have had to have overlooked precedents entirely and thus impressed upon the facts of the case my sense or the sense of the public
concerning what the law should be, and not what it is.
This is ad hoc justice based upon either my preferences or biases or the perceived will of the majority. Taken to its extreme, it is anarchy at any level that to rule in such a fashion represents the true work of an activist
judge. And so the real criticism of my decision, and this is one which I will readily accept, is that I did not render an activist decision.
Now, I'm not the only one to suffer this type of criticism as a federal judge. Last year my colleague on the federal bench, a person who I know, Judge James Whitamore, faced a similar situation in the Terri Schiavo case. Judge Whitamore rendered a decision which I believe closely adhered to the law and precedents, only to be excoriated during the subsequent public maelstrom which attended that emotional situation. He was also denounced as
an activist judge, out of touch. Some even called for his resignation.
Polls show that many Americans believe that it is acceptable to teach creationism in public schools. And early last year polls found that a great many Americans thought that Terri Schiavo should be kept alive. But I submit to you that as citizens, we do not want and in fact we cannot possibly have a judiciary which operates according to the polls, or one which rules based on who appointed us or according to the popular will of the country at any given moment in time. And this is no small matter as it relates to how our fellow citizens view the judiciary.
Back in Pennsylvania, I'm a member of a Commission on Judicial Independence as appointed by the Chief Justice of our state's Supreme Court. Our Commission defines judicial independence in this way: A fundamental cornerstone of our justice system, and in fact of our federal and state government, is an independent judiciary. The concept requires judges to decide cases in front of them in a manner faithful to the law without fear or favor and free from political and external pressures. It is vital, in my opinion, that we promote judicial independence at every level of the judiciary. Do not misunderstand what I mean by that. Many people, when they hear the term "judicial independence," think of an unfettered judiciary which is responsible to no person or entity – one which features judges deciding cases by doing what they please, free of any accountability. This is not what we, as judges, seek. This is not what we should seek. We are accountable. We should be criticized. Our decisions should be scrutinized and where inappropriate or wrong, they must be appealed and reversed.
However, we must not, I believe, "dumb down" the public by implying that judges should decide cases based on an agenda, or that they have a responsibility to act in concert with prevailing public opinion or the will of the majority. Worse than that, the press and the public have a responsibility, in my view, that is being shirked. That is to really foster a better understanding of the role of precedent in what judges do.
To be blunt, I think that many people need a civics lesson about the judicial system, because we are beginning to cross the line between fair comment and criticism of judges' work into something which is much darker and debilitating. At its worst, the failure by some segments of the media and the public to understand the proper function of an independent judiciary
leads to results which are not only frightening, but are at times tragic. All of you remember the murders of my colleague Judge Joan Lefkow's husband and mother last February, shot by a disgruntled litigant whose case had been dismissed by the judge. The killer was lying in wait for Judge Lefkow and when he discovered her loved ones first, he killed them instead.
We cannot know if, in fact, the killer of Judge Lefkow's family members, who later took his own life, was influenced by the creeping disrespect for the judiciary that exists today. However, I would respectfully suggest that it is entirely likely that it was. As a result, as a direct result of the Lefkow murders, Congress has appropriated funds for security systems for the homes of United States judges. That is a very sad statement about our times.
And I will share something else with you that I have in common with Judge Whitamore, who presided in the Terri Schiavo case. That is, after our respective decisions, mine in the Dover case and Judge Whitamore's in the Schiavo case in 2005, both of us were under round-the-clock marshal protection for a period of time due to threats that we received, in my case, from various parts of the country. I’m sure you’ll agree that that’s a sad state of affairs and an alarming state of affairs.
By doing this, and by allowing this to happen, we are discouraging good people from seeking careers on the bench. In some cases, we're losing judges who simply don't want to undertake that responsibility in the face of these threats.
Now, as I conclude, let me return to the role of the Rule of Law, which is I think so fundamental and so embedded in our system of justice. We must never forget that the Rule of Law is not a conservative or a liberal value. It is assuredly not a Republican or Democratic value. Rather, it is an American value. Confidence in the Rule of Law rests entirely at any given point in time on the character and the integrity of the individual American judge and on that judge's absolute commitment to fairness and impartiality.
Judges are very mortal and to be sure, we are deeply imperfect. However, it is no favor to the administration of justice when we either impose or imply public or political agendas on judges.
And so I ask you, my fellow citizens, while you go about the remarkable and valuable work that you do as supporters of the ADL, to think about promoting judicial independence as well. It certainly complements your mission. Indeed, I believe that your mission cannot succeed, that it will not succeed under any set of circumstances without a strong and independent judiciary.
Thank you again for the rare privilege of speaking to you this morning.