We have freedom to do the right thing
Peg and I got back to “The Osage,” Osage County, Oklahoma, USA on 26 Feb. 2023 after a trip of two days from the one-time Soviet Union Republic of Georgia that is bordered by Russia and Turkey and lies directly across the Black Sea from Ukraine, that, also, was a former member of the Soviet Union.
Georgia has a population of about four million, almost every one of whom we met yearned to come to the USA and every one of whom was insatiably curious about, “What makes America, America.” The Georgian judges we worked with from June 2022 to early 2023 unfailingly asked me “How do American judges do …?”
I was sent to Georgia by the United States Agency for International Development, the American Bar Association and the East-West Management Institute because I have been on the faculty of the National Judicial College (NJC) since 1995 teaching other judges from the United States and several foreign countries. I have designed and taught courses on judging to judges, lawyers and court administrators from Palestine (1996), in Ukraine (1999-2000), in Russia (2003) and in Georgia (2022-2023) as well as judges from other countries when they attend courses at the NJC.
My unsurprising conclusion from 10 years of practicing law and forty-three years of judging is lawyers and judges and the citizens who must look to us for justice are pretty much the same everywhere. Most people are good most of the time, most people are bad some of the time and everyone everywhere wants to know why the USA is a beacon to the world. That is what I have been asked to report on during a series of debriefings concerning our mission to Georgia.
In other words, even we Americans spend a great deal of time cogitating on what makes American judges different from foreign judges. I have certainly invested a lot of years in this quest and, during a Zoom meeting with experts from Georgia and America, I plan to offer my analysis. For such a complex and important subject my thoughts synthesize to a rather pedestrian mantra:
With all the judiciaries from other countries it has been my pleasure and privilege to know and work with, my perception is they believe that unless there is a specific, written law that authorizes them to take a particular action, even if they know it is the right and just thing to do, they cannot ethically and legally do so and, therefore, they refuse to act.
Whereas judges from the United States believe that unless there is a specific, written law that prohibits the judge from taking a bold, just and fair action in a case, the judge will take the action even if there is no law that specifically allows it.
This mantra is deep within America’s judicial psyche. Some, when they disagree with a judge’s imaginative decision, might criticize it as “judicial activism.” Of course, when they agree with the decision, they call it “wisdom.” But if one wants to define the bright-line difference in what other countries yearn for, and what America’s judges are admired for, it is just this, Judicial Independence!
This general philosophy falls within what that great American dreamer Robert Kennedy called his mantra:
“Some people see things as they are and ask, Why? I see things as they should be and ask, Why not?”
So, after 8 months of responding to my Georgian friends’ incessant curiosity of what makes America and its legal system the hope of many other countries, I point out it is not for nothing the most recognized symbol of America is the Statue of Liberty (that is, the freedom to do the right thing)!