Non-Lawyer Judges

In this final round I'll try to summarize my position with precision and clarity. To repeat the context of this debate, the proposition and the assumption involved are: 1. Resolved, that non-lawyers should also serve as judges on courts because they will enhance the court's administration of justice. 2. Deliberative bodies perform their purposes better when they have an diverse membership. I believe that every court is a deliberative body. And every court should have a diverse membership. Further, that judging at law is more of an art than it is a science. Finally, I believe these statements to be true because I believe that the notion of perspectivism is fundamental and true. 1 I believe that a court with a diverse membership is more likely to issue a judgment that is closer to the concepts of justice and wisdom ("will enhance the administration of justice") than will a court that is without a diverse membership. And sometimes it can be argued that a judge's unique perspective on an issue can be crucial to the decision that the court finally issues. For example, Justice Ruth Bader Ginsburg was the only female on the Supreme Court last June when it decided Safford United School District v. Redding 2 The issue was whether the strip search of 13 -year-old Savana Redding was unreasonable under the Constitution. When, during the oral argument, one of the male Justices expressed skepticism on whether the search of Savana was humiliating, Justice Ginsburg reminded him that he WAS NEVER A 13-YEAR-OLD GIRL! Her point made with emphasis, I would argue that thereafter the male Justices on the Court deferred (a tacit recognition of perspectivism) to Justice Ginsburg's judgment on the issue of humiliation because only Justice Ginsburg could really judge if the strip search was humiliating under the circumstances. In the case, all Justices, except for Justice Clarence Thomas, agreed that the strip search of Savana violated the Fourth Amendment to the Constitution. Only rarely in a case do eight of the nine Justices all agree on a crucial issue involved in the case. Regarding non-lawyer judges ( non-lawyer scholars who have a special interest and learning in the law), I argue that they would contribute unique insights and knowledge from their discipline (history, philosophy, etc.) to the deliberations, decisions, and jurisprudence of the court. For example, assume that Martha Nussbaum was a Justice on the Court when Safford v. Redding was argued and deliberated. Can there be any doubt that she would have contributed a deeper understanding (probably a philosophical explanation of perspectivism relative to a 13 year-old-girl) to the discussion of the humiliation involved in the strip search? Can there be any doubt that if Nussbaum was on the Court, her participation would "enhance the court's administration of justice"? I will now turn to CON'S R2 RESPONSE: RE: ASSUMPTION: Con states: "Diversity is good, but so is knowing the law." I agree. Where we disagree is the method that the prospective judge employs to qualify as "knowing the law." Con insists on graduation from law school, plus passing the bar exam, and perhaps some experience practicing law (a lawyer). I claim that the eligibility requirements should be expanded to include some "scholars with an interest in the law" (non-lawyers). What I have in mind is the student who becomes a scholar in his or her discipline (philosophy, political science, etc.), takes an interest in law, and the interest becomes his or her speciality within his or her particular discipline. Under my proposal, a Joel Feinberg, http://en.wikipedia.org... , would be eligible to be a judge. Under Con's rigid system, she would say "Sorry, Joel, but you and Martha must go to law school and pass the bar!" RE: Scholars of the Law: Con Asks: "What exactly is the benefit of having a non-lawyer judge if the scholar judge knows everything about the law?" The benefit to the deliberations of the court is the non-lawyer judge's extensive knowledge in his discipline, i.e. of history, philosophy, political science, etc., and his or her perspective (from the discipline) on the law. "RE: Pro's Question Where did I ever say that a court was not a deliberative body? Please show me where I said that and I will clarify what I meant." Con stated in R1: "I accept Pro's definitions; however, reject his assumption that deliberative bodies perform their purposes better when they have a diverse membership. I propose that this is only true of SOME bodies, and that judges are not one of them" Relative to Con's statement, I asked: "Con, what bodies are deliberative bodies and what distinguishes them from a court which you say is not a deliberative body? " As I interpret Con's initial comment on my assumption, she intended to say that: 'courts are deliberative bodies but they won't perform their purposes better if they have a diverse membership." Applied, she holds that the Supreme Court would not perform better with Justices Ginsburg and Sotomajor on the Court than an all male Supreme Court. RE: Diversity on the Bench Contd. Con states: "If they have all this knowledge, there's no reason why they can't just pass the bar." I agree (I had not thought about the bar exam as an eligibility requirement for non-lawyer scholars) and see no unreasonableness in such a requirement, but I certainly don't think that they should have to sit through three years of classes in an approved law school just to become eligible to take a bar examination. RE: Re: The learning and perspective of a non-lawyer judge will enhance the jurisprudence of a court. All that I claim is that a non-lawyer scholar judge, such as Martha Nussbaum, would enhance the jurisprudence of a court because of her deep learning in her discipline, philosophy. Professor Berns' position on the constitutionality of the death penalty was superior to Justice Brennan's position from the standpoint that the Court adopted Berns' position. It is now settled law that capital punishment is constitutional. RE: Re: Martha Nussbaum and the bar. Regarding Martha Nussbaum and non-lawyer scholars like her, my proposal is that they should be eligible to become judges without having to graduate from an approved law school. I had not thought about requiring them to pass a bar exam. I'm not opposed to that requirement. I'm quite sure that Nussbaum and the like scholars who I have in mind would have no problem preparing for, and successfully, passing a bar exam. "justice of the peace" courts: My proposal certainly does not mean a return to the justice of the peace courts. http://en.wikipedia.org... Rather, my proposal actually involves expanding the legal eligibility requirements to permit a small SCHOLARLY ELITE to be legally eligible become judges. Minnesota, my state, rightly abolished the justice of the peace courts in the 1970's by establishing a system of county and municipal courts staffed exclusively by lawyer/judges. ______________________________ 1. "Perspectivism is the philosophical position that one's access to the world through perception, experience, and reason is possible only through one's own perspective and interpretation. It rejects both the idea of a perspective-free or an interpretation-free objective reality.... Perspectivism also highlighted the irreplaceable unique value of each individual and the value of differences and diversity." http://www.newworldencyclopedia.org... ; http://www.philosophyprofessor.com... ; Ironically, Con should be receptive to my 'argument for diversity from perceptivism' because Nietzsche is her favorite philosopher. See http://www.debate.org... 2. " After escorting 13-year-old Savana Redding from (SEE COMMENTS FOR HEADNOTE AND CITATION)