How NOT to Criticize a Judge

Over at The Sores, high-powered Republican insider Jeff Roe launches an all-out attack on "liberal" US Federal District Judge Fernando Gaitan, breathlessly titled "Liberal Judge Sides With Murderers, Rapists", headed off with a grainy picture of Gaitan to make certain that all his readers know that Gaitan happens to be African-American. The screed accuses Judge Gaitan of being "obviously sympathetic to the feelings of cold hard killers and rapists", and opines "So once again, one of America’s liberal judges has taken liberties with his position on the bench . . .". It concludes by expanding Judge Gaitan's opinion to represent the position of all Missouri Democrats:

Gaitan, who has ties to U.S. Congressman Emanuel Cleaver and other Missouri Democrats, just doesn’t get it. The judge’s decision goes against everything that Missourians believe. The people of Missouri do not take sides with violent criminals. It is time that someone ask the liberal Democrats why they continue to defend murderers and rapists. It simply does not make sense.

Three aspects this Republican assault on Judge Gaitan anger me. First, it is an intellectually dishonest effort to confuse analysis and parties. Second, it personalizes disagreement with a result and even attaches a photo to focus the hatred. Third, and most laughably, they picked the wrong judge to use as a poster child for "liberal democrats" - Gaitan was appointed to the federal bench by Bush the Elder, and to the state bench by John Ashcroft.

Confusing Analysis and Parties: One of the primary strengths of our court system is that it focuses on legal positions instead of persons. If legal rights have been violated, the courts focus on that violation rather than who committed the violation and who suffered from it. To argue, as Jeff Roe does, that a judge should be condemned for "siding with violent criminals" is to begin forming a legal caste system, where parties are entitled to different flavors of justice according to their position in life. Jeff Roe is a lobbyist, so he's accustomed to that kind of treatment in the Republican halls of Jefferson City, but "some are more equal than others" is not the way the courts are intended to work.

Personalizing Disagreement with a Result is Intellectual Cowardice: First off, please understand that judges have their hands tied behind their back in the boxing ring of public opinion. They are not allowed to comment on pending litigation outside of their opinions. While they have the same First Amendment rights as any citizen, those rights are tightly bound by the Code of Judicial Conduct. When Jeff Roe attacks Judge Fernando Gaitan, he has chosen a target who cannot fight back.

That said, it is certainly fine to criticize an opinion's logic. If Roe had chosen to somehow argue that Judge Gaitan was wrong in ruling that a dyslexic surgeon mixing half the required amount of thiopental is a bad idea, then that's fine. If Roe feels that torturing someone to death with excruciating chemicals does not violate the Constitutional bar on cruel and unusual punishment, I'm willing to listen. But to shift the debate from whether the ruling was correct to whether Judge Gaitan "gets it" is intellectual cowardice. Discuss the merits or shut the heck up.

Gaitan is not a Liberal Democrat: Judge Gaitan became a judge when none other than John Ashcroft, probably the most doctrinaire rightwinger ever to occupy the Missouri Governor's mansion, appointed him to the bench, and George H. W. Bush appointed him to the federal court. While the previously mentioned Code of Judicial Conduct has prevented Judge Gaitan from actively campaigning for Republican candidates, there is not doubt among the informed which way Judge Gaitan leans.

It's also not like Judge Gaitan is anti-death penalty. His performance in the Joe Amrine case was particularly hard-nosed. Anyone who cared to do a touch of research would have seen that Judge Gaitan is a right-wing-appointed, death-penalty-supporting judge.

Now, what could have misled Mr. Roe into mislabelling Judge Gaitan as a liberal, with (gasp) "ties to U. S. Congressman Emanuel Cleaver"? Could it have been the picture at the top of the post?