Being a judge

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On 22 April 1954 Felix Frankfurter (1882-1965), a former Eastman Visiting Professor at Balliol (1933-34) and an Associate Justice of the United States Supreme Court (1939-62), gave a speech to the American Philosophical Society.

“Judicial judgment”, Frankfurter remarked, “must take deep account of the day before yesterday in order that yesterday may not paralyze today, and it must take account of what it decrees for today in order that today may not paralyze tomorrow.”

A large number of Balliol Old Members have become judges, undertaking the process that Frankfurter described. There are currently over 40 Balliol alumni who are practising judges sitting on appeal, circuit, district, and high courts around the world.

This article takes as its subject three judges – Lord Reed, the Hon Jed Rakoff, and Sir Henry Hodge – who have had a significant impact on the social, political, and economic landscapes of their respective countries and across national boundaries.

Lord Reed

[Lord Robert Reed]

Robert Reed (1978), who graduated from Balliol with a DPhil in 1982, became a judge of the Scottish Court of Session in 1998 after practising primarily public and European law at the Scottish Bar for 15 years.

Reed envisions the law as “an important branch of human thought, expressing ideas about how society should be regulated, and providing part of the framework of social and political relations.”

In his view, the development of the law is a centuries-old process driven by the contributions of each generation of lawmakers. “The intellectual challenge”, he says, “of developing the law in a way which is faithful to established principles but which keeps it abreast of current ideas and requirements”, is the most appealing aspect of being a judge.

Consequences for global community quote

The environment and human rights

Although Reed currently presides as the principal judge of the Commercial Court, he has maintained a commitment to environmental and human rights issues throughout his career.

“I would hope”, he comments, “that everyone is interested in the environment, since mankind depends on it.” He became the President of the European Union Forum of Judges for the Environment on 1 January 2006. Supported by the EU Commission and national governments, the Forum identifies and evaluates legal problems stemming from the Commission’s environment-related legislation. The Forum’s 2007 agenda deals with the criminal enforcement of environmental law.

The Forum also collaborates with other organisations to better the application of environmental law. In 2007, for example, Forum members will take part in a conference on the protection of the Mediterranean and the Black Sea, and will undertake joint work with the EU Commission and the United Nations targeted at judges in Eastern Europe, the Caucasus and Central Asia.

Reed is also a member of the United Nations’ Task Force on Access to Justice under the Aarhus Convention (1998), which concerns political and civil rights relating to the environment. He is currently involved in organising workshops on the Convention for judges in Central Asia and the Caucasus, an area of the world in which the enforcement of international environmental law is greatly hindered by the pressures of recent economic development.

Between 2002 and 2004, Reed participated in the EU Initiative with Turkey on Democratisation and Human Rights.

The EU deferred Turkey’s bid for membership in 2002 partially because of human rights violations. In an effort to ready Turkey for its 2004 reapplication, the EU Commission set forth a two-year programme, run by the Council of Europe, to help Turkey’s judiciary and legal professionals meet the necessary EU requirements. Reed and a French judge were appointed as expert advisers on the project.

Although Reed’s endeavours helped to improve Turkey’s human rights situation, it was not enough to surmount objections to Turkish membership in 2004.

Turkish woman
Turkey’s proposed entry into the EU has continued to be a contentious issue.

Challenging legal issues

Although his judicial career has yet to pass the decade mark, Reed’s experiences as a judge have enabled him to discern some of the most challenging issues that currently have an impact on the law. He cites, for example, the pressures resulting from social and technological changes – in areas ranging from reproductive medicine to the impact of terrorism on civil liberties – as a prevalent concern.

Undoubtedly, these pressures will continue to confront the judicial systems of the world in profound ways. Their impact is already evident in questions regarding, for example, the relationship between Guantanamo Bay and the Geneva Convention during an international ‘war on terror’.

At another level, the issues arising from these pressures speak to a further growing trend that Reed identifies: the increasing tendency of new laws being created at a European or international level, instead of by national institutions. “Since European and international law are not grounded in our patterns of legal thought and reasoning”, Reed remarks, “they can be particularly difficult to absorb into our legal culture.”

The difficulties of navigating global concerns through international institutions and organisations have a long history – the 20th-century failings of the League of Nations, and UN peacekeeping missions to Rwanda, Somalia, and Bosnia, for example – which painfully illustrates the limitations of collective action when individual nations’ interests prevail over international ones.

How lawmakers will reconcile this trend of European and international lawmaking with their own legal cultures holds great consequences for the global community.

The international initiatives of the United States, for example, already provide a hint of what may happen should lawmakers be unable to navigate the divide between national and international.

The 2003 President’s Emergency Plan for AIDS Relief (PEPFAR), a plan pledging $15 billion in aid to other countries over five years to combat HIV/AIDS, has been criticised for restrictions and glaring omissions in its scheme; these include the condition that one-third of prevention funds be used for abstinence-only programmes, and the lack of aid given for needle exchange programmes and commercial sex workers. Such issues can give the impression that US, rather than international, interests seem to drive what the American government terms “an international health initiative.”

The consequences of such actions create potentially irrevocable damage to international relations, and should individual nations’ legal cultures prove unable to accommodate collectively drafted laws, then viable solutions to problems like the HIV/AIDS epidemic may never materialise.

Reed suggests one change that could potentially help nations and their citizens bridge the disconnect between national and international: “I would like to see a more responsible discussion of human rights and asylum issues in the Press and in politics.” He adds, “Critics of judicial decisions often fail to acknowledge the constraints within which judges have to operate, as a consequence of obligations undertaken by our country at an international level.”

The wide arc of Reed’s judicial career – through commercial, environmental, and human rights issues – demonstrates that, in all aspects of life, the application of the law constantly negotiates with competing notions of what is socially acceptable and unacceptable, and not necessarily with what is lawful or illegal.

To be effective, the law requires those who live under it to possess more than a vague sense of what is ‘right’ or ‘wrong’; it requires a proper understanding of the legal issues at stake so that, as Felix Frankfurter said, “yesterday may not paralyze today, and…today may not paralyze tomorrow.”

The Hon Jed Rakoff

[Jed Rakoff]

Jed Rakoff (1964) is a judge with succinct, yet incisive answers.

When asked to identify current crucial legal issues, his reply consists of eight words: “Now, as always, the preservation of individual liberty.” His response brings to mind a whole global history of struggle and determination upon which an infinity of words has been written.

Summoning of human history aside, he is certainly not without a sense of humour. Rakoff’s response when asked to define what he believes is the purpose of lawmaking waxes philosophical at a lengthy four words: “To keep judges busy.”

Whilst Rakoff’s replies seem to indicate a penchant for elegantly-crafted, hard-hitting understatement, his judicial orbit as a United States District Court Judge points towards a professional life full of larger-than-life legal issues. Nothing less should be expected of the kinds of civil and criminal cases that are brought in his Federal Court in the Southern District of New York, which encompasses Manhattan.

Balliol is magic quote

Rakoff completed an MPhil in British Imperial History in 1966 at Balliol, a place he recalls with nostalgia: “I have been fortunate to spend time in many wonderful places in the world, but only one that I considered magical: Balliol College, Oxford.”

Over the next 31 years, he graduated from Harvard Law School, clerked for Judge Abraham Freedman of the US Court of Appeals, practised with three New York law firms, worked in the US Attorney’s Office, and taught at Columbia Law School.

When the time came to be interviewed by a judicial selection committee headed by the late Senator Daniel Patrick Moynihan in 1995, however, Rakoff’s professional qualifications went unmentioned. Instead, he ended up discussing the subject of his MPhil in Indian history with Moynihan, who happened to know a lot about the topic due to his prior service as UN Ambassador to India (1973-75).

“I guess he liked my take on Indian history”, Rakoff quips, “because he then recommended me to President Clinton, who nominated me for the judgeship.”

Trial by jury is a treasured right among Americans, although actually serving on a jury is not so popular. Here, a judge and jury in Rockville, Maryland, listen to the testimony of a witness.

Ground-breaking judgements

Since his confirmation as a judge at the end of 1995, Rakoff has presided over many important international, ‘white collar’ criminal, and commercial cases tried in the United States.

His more influential case decisions include his ruling in UMG Recordings, Inc. et al. v. (2000), that violated intellectual property laws, more specifically US copyright protection, by allowing users to store music on for future downloading.

Another case of note is Associated Press v. United States Department of Defense (2006), in which Rakoff infused a much-needed dose of transparency and accountability into the government’s behaviour concerning civil liberties and its ‘war on terror’ by requiring it to release 317 unredacted Combatant Status Review Tribunal transcripts relating to detainees at Guantanamo Bay.

Rakoff, however, considers the settlement reached in the 2003 suit, Securities and Exchange Commission v. WorldCom, to be his most important in terms of immediate impact. Handling the largest fraud case in US history required him simultaneously to determine the financial punishment of the miscreants, provide adequate monetary compensation to shareholders suffering from over $2 billion in losses, and salvaging the jobs of 60,000 workers by appointing new management and a new board.

Rakoff cites his declaration of the unconstitutionality of the death penalty in United States v. Quinones (2002) to be his most consequential case in the long term. In 1999 the Federal Government charged Alan Quinones with a drug-related murder in the Bronx. In his trial, Quinones’s defence asserted that inaccuracies in the judicial system – ranging from gathering of evidence to representation issues – had ensured that many innocent people had been sentenced to death, urging the government to take into account the impact of exonerations from death row and new technologies, like DNA testing, on changing definitions of fundamental rights and legal safeguards.

In his judgment, Rakoff ruled that the death penalty violated both procedural due process by denying innocent people the opportunity to prove their innocence, and substantive due process by creating an unwarranted risk of executing the innocent.

Later in the year, the US Court of Appeals for the Second Circuit overturned his decision. “Although my decision was reversed on appeal”, he says, “I am confident it will eventually become the law of the land.” As of January 2005, Quinones and his co-defendant, Diego Rodriguez, are serving life sentences.

[Henry Dunn]
Henry Dunn, 22, on Death Row in Texas, being escorted to the shower (July 1997). A corrections officer slides a large shield of reinforced plexiglass beside Dunn as he walks, to protect him from any attacks by other inmates.

The jury system

To Rakoff, the most challenging aspect of his judgeship resides not in the individual cases, but in the overall process of ensuring fair and just trials within the context of the jury system.

“Perhaps a trial judge’s greatest challenge”, says Rakoff, “is to make sure that the jury understands the often complex issues they are called upon to decide.” His comment only alludes to the tip of the iceberg. Americans are notorious for treasuring their right to a trial by jury, whilst possessing less than amicable feelings towards jury duty.

Regardless of the larger problem of apathy towards jury duty, Americans still serve on juries, rendering Rakoff’s point an important one. “The jury system is one of the most profound ways in which everyday citizens can exercise their civic responsibilities”, he remarks, “but it only works if the judge works very hard to make sure that the jury is presented with the facts and the law in a manner that is clear and fair.”

Rakoff also perceives greater problems in the legal system that require immediate attention. “The Anglo-American adversary system of justice works wonderfully for everyone but the poor”, he wrote. “For them, it hardly works at all.”

According to the Legal Services Corporation (LSC), LSC-funded programmes complete almost one million cases every year. More than 50 million Americans qualify for civil legal aid from LSC-funded initiatives.

The problem, however, is not necessarily a question of who qualifies for aid, but of whether enough properly trained lawyers are involved in legal aid. In his opinion, there are not: “I would require all lawyers to devote 25% of their time to representing indigents.”

The judicial decisions that characterise Rakoff’s 12 years as a judge are indicative of a strong commitment to the fair and just application of the law.

Whether dealing with the death penalty, intellectual property, or fraud, his rulings have deeply interrogated the evolving relationship between citizens and the law. In this light, Rakoff’s judgeship is proof that the judicial system, despite its imperfections, still works.

Sir Henry Hodge

[Sir Henry Hodge]

When the UK asylum system underwent major modifications in 2005, the government called on Sir Henry Hodge OBE (1962) to play a leading role in the newly established Asylum and Immigration Tribunal.

Hodge was seconded from his duties as a judge of the High Court of England and Wales for a three-year period in order to serve as the President of the Asylum and Immigration Tribunal.

Undoubtedly, the government is relying on Hodge, who had previously served as Chief Immigration Adjudicator (2001-04) of the Immigration Appellate Authority, to help smooth the transition from a two-tier to a single-tier tribunal system.

After graduating in Law from Balliol in 1965, Hodge studied at the College of Law (1968) and qualified as a solicitor in 1970. Before becoming a judge, he ran his own firm, served as chairman of a number of groups – such as the Child Poverty Action Group, and the National Council for Civil Liberties – and sat as a member on numerous committees, including the Lord Chancellor’s Legal Aid Advisory Committee and the Social Security Committee.

He became a recorder in 1997, a Circuit Court judge in 1999, and finally a High Court judge in October 2004. He has the distinction of being only the third solicitor to become a High Court judge in England and Wales.

Papers belonging to illegal immigrants, Poland

Asylum and immigration cases

Although Hodge’s obligations include handling judicial reviews, sitting in the Court of Appeal Criminal Division, and hearing administrative law and criminal cases, he spends most of his time working on the Asylum and Immigration Tribunal.

As President, he provides the jurisprudential lead for the Tribunal, and attends to the significant managerial responsibilities which accompany an organisation that has over 700 judges and 120 courts dispersed across ten hearing centres on a daily basis.

The Tribunal currently processes about 150,000 asylum and immigration claims a year from people who wish either to stay and settle in the UK or to visit their families.

“Asylum cases are perhaps the most difficult”, Hodge says. “If you get the decision wrong you could be sending somebody back to serious risk of ill treatment in their home country, and so they require very anxious scrutiny.”

The top five applicant nationalities in the first quarter of 2007 were Afghanistan (755 applicants), Iran (600), China (480), Somalia (398), and Eritrea (340). Over the past few years there has been a decline in the number of cases presented each year. At the moment, the Tribunal is handling about 20,000 asylum cases annually, as opposed to the 80,000 brought in 2000.

As the number of asylum cases has lessened, the immigration work has significantly increased. At the same time, Hodge points out that political and social instabilities have not slackened: “The conditions in the countries that many of the people come from are very dire – Zimbabwe, for instance, and the Sudan. The DRC [Democratic Republic of the Congo] is one of the most dangerous places in the world, in my view. Random attacks are common there.”

It is obvious that Hodge’s involvement with asylum and immigration claims has given him a clear idea of what purpose lawmaking serves: a “philosophical question”, Hodge says, “which we who sit and decide individual cases don’t have to struggle with very often.” But hearing asylum claims, he adds, “makes one realise how important it is to have a clear legal system. In some countries such as Somalia there is virtually no law; the place is run by militias and tribal groups, and the law of the gun is what counts.”

High court judge quote

Difficult legal issues

Although the scope of Hodge’s judicial activities centres around the Asylum and Immigration Tribunal, his work in the High Court presents many interesting and challenging aspects. “The work can be quite relentless, and you periodically get really quite difficult legal issues which you have to decide”, he remarks.

However, the process of learning about new issues and new cases in different areas of law on a regular basis, in his view, makes the difficulties of judging worthwhile.

The impact of the many legal positions Hodge has held over the past 37 years can be seen in his opinions about what are currently the most critical legal situations in the UK and internationally.

In the UK, he believes that the issue of the independence of the judiciary, in the light of new constitutional changes, will come to a head in the immediate future.

The Constitutional Reform Act of 2005 will mean that the Supreme Court takes over the duties of the Law Lords and some of the powers of the Judicial Committee of the Privy Council, and strips the Lord Chancellor of the positions of Speaker of the House and Head of the Judiciary of England and Wales. How well these changes will bed down over time will greatly influence the independence of the judiciary.

In England and Wales, Hodge believes that concerns surrounding sentencing policy and overfull prisons will continue to demand resolution.

According to the Home Office, on 31 March 2007, 80,374 people were held in prisons in England and Wales, an increase of four per cent from the previous year. The Prison Service projected its 2007 prison capacity at 80,400, which makes overcrowding a very likely possibility.

[The Royal Courts of Justice]

The International Criminal Court

Internationally, the workings of the International Criminal Court will assume paramount importance, particularly in Hodge’s work on asylum cases. “The leaders of the Sudanese government are very worried about being taken before the International Criminal Court on the basis that they may be complicit in events in Darfur”, he says. “How the international community can police that kind of thing is a very interesting issue.”

Created in 2002, the International Criminal Court (ICC) is a permanent tribunal that prosecutes individuals for war crimes, crimes of aggression, genocide, and crimes against humanity in cases where national judicial systems are unwilling or unable to take legal action.

The ICC relies heavily on the co-operation of its member states, and, as a result, often finds that it is unable to enforce laws.

In the case of Sudan, the ICC issued warrants on 2 May 2007 for the arrest of Sudanese Humanitarian Affairs Minister, Ahmad Muhammad Huran, and Janaweed militia leader, Ali Kushayb. The Sudanese government, however, refuses to arrest these men on the grounds that the ICC, in the government’s opinion, has no jurisdiction in the matter.

However, the most immediate issue, in Hodge’s mind, stems from the legal aid work he has undertaken throughout the course of his practising life. “I think the amount of money available for legal aid is insufficient”, he expounds. “And if there is anything I could change I would make a lot more money available for providing assistance and help to the less well-off in society.”

Although the Legal Services Commission reports that nearly 800,000 civil legal cases received legal aid funding during the 2006/07 financial year, the £2.1 billion budget is not enough to meet current demand.

He expects to return full time to the High Court in 2008 or 2009. Until then, he will continue presiding over the Asylum and Immigration Tribunal.

Hodge’s judicial career over the past eight years demonstrates what seems to be a common feature among Balliol alumni judges: the conviction that to involve oneself in the betterment of humanity by conscientiously making judicial decisions – whether about the environment, human rights, intellectual property and commercial disputes, the death penalty, fraud, or asylum and immigration cases – ensures that the law remains a relevant tool for justice and the future.

Peiling Li (2006) graduated from Brown University with a BA in History. She is currently pursuing an MPhil in Modern European History at Balliol.