Alan Chartock | I, Publius: Judges can reach different conclusions to same legal questions

GREAT BARRINGTON — Let's talk about judges and the law. One of my heroes has always been Judge Jerome Frank. He passed away long ago, but he believed that judges have tremendous power when it comes to interpreting the law.

Frank was himself psychoanalyzed and apparently believed that, unless a judge recognized and acknowledged his own prejudices, he could not fairly administer the law.

He rejected the idea that judges could decide all cases based on basic law.

If, for example, a policeman can order a hardworking, middle-class, black citizen whose only crime, on the face of it, appears to be "driving while black" to get out of a car and lie on the ground, who's to say a judge might not harbor the same types of prejudices?

One judge in New York used to let so many people go that he got the nickname "Cut 'em Loose Bruce."

All human beings bear some form of prejudices, and that's why a lot of lawyers engage in the practice of "judge shopping." Some judges are known for leniency, while others are known as "hanging judges." It's clear that your chances are very different, depending on who hears your case.

Many, but not all, judges receive their appointments because of their political credentials. You have to look no further than to the U.S. Supreme Court for evidence of this. Before these people are appointed, they are thoroughly vetted for their political beliefs. When seeking appointments, they always swear they will be fair and impartial, but once they are on the bench, lo and behold, they follow the political script of the politicians who appointed them.

In the case of Judge Neal Gorsuch, appointed by President Donald Trump, the guy is already following the Trump playbook. Barack Obama nominated a sterling judge, Merrick Garland, to the court. He was probably a more "down the middle" judge than Gorsuch, but the Republicans in the Senate made sure that Garland would not be seated.

This happens in the lower courts as well. Judge John Agostini recently decided a case involving the right of the Berkshire Museum to sell some of its most important paintings at auction. Many of us thought this was a terrible decision. The case was appealed, and the appeal was joined by Massachusetts Attorney General Maura Healey.

The higher court has yet to issue a final ruling, but the museum people seem desperate to get the case back before Judge Agostini. They obviously know that they have the best chances before this man.

I am fascinated by the political crowd in Pittsfield who, for reasons unknown to me, want the museum to sell the paintings, which many of us think would be a sin. In short, it cannot be denied that there is plenty of room for judges to impose their wills in different directions, despite the fact that they are operating under the same law.

You will, of course, remember the wonderful scene in "Miracle on 34th Street," one of the best films ever, in which the ward heeler, played by William Frawley, keeps warning the judge that he'd better not rule against Santa Claus. In that case, the judge got the message.

Of course, there are other variables when kids come before judges.

Early in my academic career, I occasionally went to a New York state court and watched the kids come before a certain judge — some white, some black, some with their parents, some in good suits, some in less fancy clothes. I don't need to tell you what the results looked like to me.

If you have some spare time, I recommend that you take the opportunity to observe what goes on in court. It just might be that a group of people sitting there watching might actually change an outcome or two.

Alan Chartock, a Great Barrington resident, is president and CEO of WAMC Northeast Public Radio and a professor emeritus of communications at SUNY-Albany. The opinions expressed by columnists do not necessarily reflect the views of The Berkshire Eagle.


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