Oliver Cromwell, the great revolutionary of 17th century England, once addressed a group of differing English lords and said to them, “Gentlemen, I beseech you in the bowels of Christ to consider the possibility that you may be wrong.”
This occurs to me as I think about the brouhaha about Donald Trump’s suggestion that the judge in a civil lawsuit against his fake college, Trump University, might be biased against him because the judge is of Mexican heritage. As everyone knows, Trump is widely considered, with some reason, to be anti-Mexican. Mr. Trump says that the Judge, Gonzalo Curiel, a member of a La Raza group of Mexican American lawyers who make it a point to identify as Mexican heritage persons, might be unable to be fair to Mr. Trump.
Now the MSM and the powers that be are crawling all over Trump. How dare he suggest that a judge, a man in a robe, might be biased because of his ethnicity or political leanings? How dare he suggest that judges are not above bias?
How dare he? Because he’s totally right. That’s how. It has been almost eighty years since legal scholars, largely operating out of my alma mater, Yale Law School, two years ahead of Hillary in legal scholarship, demolished the idea that law was something perfect and pristine.
Those lawyers, led by Fred Rodell, Tommy Emerson, and Karl Llewellyn (he was at Columbia) showed powerfully that law is not a “brooding omnipresence in the sky,” to use Oliver Wendell Holmes’s phrase. In any big case, there could always be two possible outcomes at least. Judges picked and chose which one they wanted based on their politics, their backgrounds, what lawyer’s necktie or shoes they liked better. The law was what judges said it was and nothing more.
These great sages showed that in case after case, judges simply abandoned anything but the slightest pretense of following prior case law. They just made the law up out of their own prejudices and ideals, then had their clever law clerks beaver away to find some case that seemed to offer cover.
The most recent famous ones had to do with abortion and Obamacare, in which judges found rights and privileges lurking in shadows where no one had ever seen them before. They did this on the basis of their own feelings.
To suggest that judges are above bias, above anger, above feelings of revenge, is like suggesting that members of Congress or investment bankers or rock musicians are above making decisions based on their biases. “If you prick us, do we not bleed?”
This is not some kind of scary legal regression into knuckle dragging reaction. This is what the finest legal scholars of the last century believed. Mr. Trump may have been crude in his application, but he hit it right into the grandstands with his legal analysis. He may be smarter than I thought.