Jewish World Review Oct. 24, 2003 / 28 Tishrei 5764

Paul Greenberg

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Why judges should be seen and not heard

http://www.NewsAndOpinion.com | It's not easy to pick the most ridiculous aspect of a generally ridiculous case about the Pledge of Allegiance now wending its way out of California (of course) toward the Supreme Court of the United States - like a clown car approaching a railroad crossing.

Soon enough adults in suits and ties will be asserting that the mention of "under God" in the pledge is unconstitutional - right after the high court begins its deliberations with the traditional incantation, "God save this honorable court."

But here's my favorite seriocomic aspect of this case: The most lucid thinker on the Supreme Court - yes, I know that's faint praise - has recused himself from hearing it.

The court's decision will have to be made without Antonin Scalia. Think of the Yankees without Roger Clemens, the Red Sox without Nomar Garciaparra or the U.S. Senate without Pat Moynihan.

Judges needn't and probably shouldn't offer any reason when they take themselves out of the lineup, but it's not hard to guess why Mr. Justice Scalia chose to sit this one out. By now he's made so many speeches to so many different audiences that it was only a matter of time before he undeniably prejudiced himself in one case or another.

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Which is just what Justice Scalia did at a Knights of Columbus dinner earlier this year, when he produced this out-of-court jumble of legal analysis - and advocacy:

"We've said in our opinions that the government may neither favor nor disfavor any particular sect of religion or religion in general. Never mind that this is contrary to our whole tradition, to 'in God we trust' on the coins, to Thanksgiving proclamations, to chaplains, to tax exemptions for places of worship, which has always existed in America. . . . And it is that philosophy that has enabled a district court in California to hold, with some plausible support, in the opinions of the United States Supreme Court, that it is unconstitutional to say in the Pledge of Allegiance 'one nation, under God.'"

With those words, Justice Scalia the speaker effectively disqualified Justice Scalia the judge in this case. For he was then ethically bound to sit this one out - much to the delight, no doubt, of those on the other side. When a judge turns advocate, he does most damage to himself.

In this case, the net result of all Justice Scalia's eloquence is that the Supreme Court - and the country - have been deprived of the services of one of the few members of the court who can write a clear, unmistakable opinion in clear, unmistakable English prose.

Whether you agree or disagree with an opinion from Mr. Justice Scalia, and I regularly do both, you can always understand it, see how he came by it and where he would have the law go. Which is a lot more than one can say about the vaporous effusions from most of the other justices.

My vision of judicial Hell is being locked into a room and forced to listen, "Clockwork Orange" fashion, to the collected works of the Ginsburgs, Breyers, Souters, et al. Those types would make you long for the company of an aluminum siding salesman.

When you think of the judicial alternatives, no wonder Antonin Scalia receives so many speaking invitations. But at a time like this, you wish he had turned down more of them.

My model in these matters is John Marshall Harlan the elder, who, as soon as he joined the Supreme Court, stopped voting in federal elections. That way, he wouldn't risk prejudicing himself even in his own mind.

Not all judges can recognize, as Antonin Scalia has just done, when they cross the line. See the recent, ungodly spectacle over the Ten Commandments in Alabama, in which a judge acted more like an agitator than adjudicator.

The great judge understands that the law is to be used not as a bludgeon but as a lamp. And that his own passions may only block the light. He is to act as a judge and as a judge only.

As one of the greatest of American jurists, Learned Hand, described the duty of a judge, "If he is fit to serve in his calling at all, it is only because he has learned not to serve in any other . . . ."

When a judge takes on any other role, like advocate or orator or commentator or philosopher or just after-dinner speaker, he risks becoming less a judge. For he cannot doff his office the way he does his robes. And what he says may come back to haunt him.

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JWR contributor Paul Greenberg, editorial page editor of the Arkansas Democrat-Gazette, has won the Pulitzer Prize for editorial writing. Send your comments by clicking here.

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