"managing the High Profile Case" (taking the Constitution Seriously)
| Publication year | 1989 |
| Pages | 14 |
| Citation | Vol. 2 No. 1 Pg. 14 |
BRUCE S. JENKINS REMARKS OF CHIEF JUDGE, UNITED STATES DISTRICT COURT DISTRICT OF UTAH
1988 UTAH JUDICIAL CONFERENCE
OGDEN, UTAH
SEPTEMBER 29, 1988
I am genuinely honored to be here. I think this may be the first time in Utah history—prestatehood, poststatehood— where a sitting federal judge has been asked to speak at a statewide gathering of state court judges.
From territorial beginnings, that amounts to 141 years.
From statehood, that amounts to 92 years.
As a court, we appreciate the invitation, the camaraderie, and hope to merit your confidence.
Even so, I speak to you today with some hesitation.
I operate under a cloud. Let me lay it out so that everybody knows exactly what I mean.
Earlier this year, in a low profile case, the federal district court was placed under a curse. I point this out to you not by way of excuse—nor indeed by way of explanation. I simply tell you the fact so that you can better evaluate my remarks. (I do take some comfort in the fact that the curse came directly from a defendant and not through counsel.)
One bright day, a defendant standing by the side of his court-appointed attorney-wanted me to reconsider a pro se motion filed by him which I had previously denied. The following took place.
The court:".. .we're going to set a trial date today. Your motion to dismiss I have considered, sir. It looks to me like you have nothing to add to it. The motion will be denied. Let's fix a date."
Defendant: "Your honor, I am bound by the laws of God to state to you that you are in violation of your oath—that you are a criminal under the laws of this United States of America. You have been and are a traitor of the United States of America. I command in the name of Jesus Christ the angels speedily take your spirit to the spirit prison and there retain you until the resurrection of the unjust, in the name of Jesus Christ, amen."
The court: "Okay. Now let's fix a trial date."
Now that is an experience only a trial judge could have. However, I am confident that if the matter went on appeal, the Appellate Bench might suggest that the curse raised serious questions of fact which require an evidentiary hearing and would probably reverse and remand for further proceedings.
Please don't think that I took the curse lightly. Shortly after I was favored with a curse, I was reading in a book picked up at an idle moment from a remainder table. It told of Father Divine, a black, self-appointed cleric who claimed to be God on Earth. He flourished during the Depression days when I was a child. He got into trouble with the law. After trial, he was sentenced. Four days later, the judge died. Father Divine, in response to an interview, merely said: "I didn't really want to do it."
Let me offer a toast—perhaps a prayer: God willing, may we meet together again at this time next year.
At any rate, please appreciate the baggage of the curse.
I was asked to speak on management of the high profile case. Implicit in that challenge—and it was a challenge—is the other side of the coin. I call that side "taking the constitution seriously."
I want to say a few things in general before I make certain suggestions in particular. I relish the opportunity to talk with fellow judges because we come from a common culture, having learned to think in a common way. We speak a common language, and our values, goals and objectives are the same.
The clues for meeting and mastering the ever-present problems of a high profile case are found in a few fundamental ideas footed in the constitution, in particular, and in the history of the legal system in general.
We are still, some 201 years after the instrument was first signed, trying to meet the preamble-stated agenda. We are still endeavoring to form a more perfect union. We are still endeavoring to establish justice, promote domestic tranquility and secure the blessings of liberty for ourselves and our posterity.
How miraculously wise of the founding fathers to create a system of dual sovereignties and separated powers. But we are still fighting the never-ending battle of fragmented power—the geographic battle, which we call federalism, and on the federal level, the efforts of one branch of government to enlarge itself at the expense of another. We forever man the boundary lines of governmental power.
As background for the burden of my discussion, I want to talk briefly about what courts are all about and will take a few moments to describe some common characteristics of the courts. I do this to revisit fundamentals with you. In the popular literature of the day, there is much confusion about the fundamentals—much confusion and much nonsense. We need first to think clearly about court purpose and court process, and the fundamental values they reflect.
What is our purpose?
To what and to whom do we owe our allegiance?
In the briefest way possible, our job is to do justice. Micah said it best: Do justice, love mercy, walk humbly.
When I entered upon this job, I took an oath. When you entered upon yours, you took a similar oath. Every appellate judge in the federal system, including a justice of the United States Supreme Court, takes a similar oath.
Let me read it to you. "I do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as a United States District Judge according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States. So help me God." I keep a copy of that under glass on my desk. I keep a copy before me on the bench.
When I suggested that the subtitle of the topic for discussion—the other side of the coin—was taking the constitution seriously, I meant what I said.
The oath summarizes eloquently court purpose and court manner.
Administer justice.
Fairly.
Agreeably to the constitution and laws. If done well, the court product is accepted by most of the populace, even if they disagree with it.
The reasons for that, in my opinion, are three characteristics that courts have which, I believe, persuade acceptance by most members of the populace.
I call them continuity, stability, integrity. Let me illustrate. Our courts provide cultural continuity. We bind the past and the present with the future. Courts may reach back into the reservoir of experience and use that past experience in resolving similar present-day problems. We look to precedent.
Our courts provide stability. We are essentially conservative institutions in the classic sense. We can deter other branches of government from running too fast or stop them from exercising power outside of their rightful boundaries. We arbitrate between contending factions which hold government power.
Our courts provide integrity. That is a handy label—a shorthand way of observing that:
(a) Courts are passive. They don't seek business. They are available.
(b) Courts are disinterested. Not uninterested. Disinterested. They have no ax to grind. They stand apart.
(c) Courts move at a different pace. They have an obligation to take time to think. (Thought, not being a performing art, is often unnoticed.)
(d) Courts place high emphasis on the method of reason and the value of talk, the meaning of...
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