the soigné, fastidious, civilised, cultured and cultivated patricians of the progressive judiciary – our new philosopher-kings and enlightened despots – are in truth applying the values which they hold, and which they think the poor simpletons of the vile multitude – the great beast, as Alexander Hamilton called it – ought to hold even though they do not. The trouble is that persons adhering to different values or different perceptions of need or different aspirations tend to be at risk of being ruthlessly waved out of all decent society as enemies of the people.
In short, radical legal change is best effected by professional politicians who have a lifetime’s experience of assessing the popular will, who have been seasoned by much robust public debate and private haggling, who have all the resources of the executive and the legislature to assist, who can deal with mischiefs on a general and planned basis prospectively, not a sporadic and fortuitous basis retrospectively, and who can ensure that any changes made are consistent with overall public policy and public institutions.
Professional politicians may not be an ideal class, but they are better fitted than the courts to make radical legal changes. It is curious that the Mason court, whose members individually have tended to stress that the Constitution was made by the people of Australia, and who collectively implied into the Constitution a provision requiring freedom of political communication on the basis that the Constitution provided for representative democracy, whereby parliamentary legislators are chosen directly by the people, tended to treat itself as another legislature even though it was not chosen by the people: Australian Capital Territory Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 137 per Mason J. Footnote 3 on that page contains the enigmatic observation: “It should be noted that the notion of representative government leaves out of account the judicial branch of government.” The perception that “all powers of government ultimately belong to, and are derived from, the governed”, and that the governed elect legislatures but not courts, has not led the High Court to the conclusion that the courts should assume a very different role from that of parliamentary legislatures.I'm reading 'Oral History and the Study of the Judiciary' by Chad Oldfather in the March 2010 George Washington Law Review [PDF].
Oldfather comments that -
As Judge Posner put the point, in confessing his feeling "a certain awkwardness in talking about judges": "Biographies are more reliable than autobiographies, and cats are not consulted on the principles of feline psychology". ... Quantitative studies provide a picture of the judiciary as a whole, but speak only in generalities. Qualitative accounts are useful to round things out, but the self-selected nature of judicial writings on the judicial process suggests that such accounts provide an incomplete perspective as well. Judges who have chosen to write about the processes of judging may have different perspectives than those who have not, and it is consequently difficult to conclude that their insights apply broadly to other judges.Oldfather goes on to comment that -
A book like William Domnarski's Federal Judges Revealed holds out the promise of filling this gap. The book is constructed around oral histories of roughly 100 federal judges at both the district and circuit-court levels. Its raw material, in other words, consists of discussions in which a wide array of federal judges — not just those who have taken the initiative to address the matter in print — talk about the processes of judging. Here, then, we have the perspective of the average judge, and we have enough of a sample size to imagine that we might be able to engage in some generalization about the characteristics of the federal judiciary.
In focusing on oral histories, Domnarski has tapped into a source of information on judges and judging that has been largely overlooked. There are at least two reasons for thinking that this approach will yield worthy insights. First, because the interviews on which Domnarski draws were conducted orally, the judges lacked the ability to stage-manage to the same extent that they could in a lecture or written article. To be sure, the judges were undoubtedly still controlling the message. But an interviewer who establishes a good rapport with a judge can introduce a comfort level that perhaps leads the judge to be somewhat less guarded than she otherwise might. Second, the timing of these interviews is significant. The judges who sat for these interviews were almost uniformly at the end of their careers. For them, the battles had been fought, and any felt need to position themselves for a potential promotion had passed. This, too, encourages candor.
Domnarski is thus, to take just two examples, able to relate some revealing stories about the appointments process, and to provide as full and unguarded an account of the extent to which judges rely on their law clerks as is available anywhere. Domnarski encourages these sorts of conclusions about the unique contributions of oral history. He contends that "the sources we would ordinarily expect to turn to have not produced anything resembling a critical mass of information to allow us to begin making judgments about the performance of the federal judiciary, either on an individualized basis or on the judiciary as a branch of government". Only oral histories, he suggests, can tell us "who the judges are and what they do".
My aim in this Essay is to explore these claims and intuitions, with an eye toward determining just how useful oral history is to the study of the judiciary. Part I examines oral history as a methodology, on the understanding that we can appreciate the value of the products of oral history only after having a firm appreciation for oral history's methodological strengths and weaknesses. Part II reports the results of my review of three oral histories provided by the late Judge Thomas Fairchild of the Seventh Circuit, one of which was among those reviewed by Domnarski. Part III then turns to Federal Judges Revealed. It provides a brief overview of the book and an assessment of its contribution to the study of judges and the judiciary.
