Let judges take a stand

(The Boston Globe)
February 5, 2011

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NANCY GERTNER, who announced her retirement from the federal bench yesterday, isn’t everyone’s ideal judge. She first became prominent as a relentless defense attorney and as an advocate for women’s rights and civil liberties, and she hardly fit the taciturn mold of a judge in a Norman Rockwell painting. Her activist’s passion carried over onto the bench, and her opinions often reflected a determination to rattle the chains of the legal system.

But Gertner’s willingness to push against boundaries, in cases such as her decision to reduce a huge jury award against a student for illegally sharing music, more often attested to her courage, intelligence, and creativity than to any political agenda. A figure of intellectual passion and conviction, her work on the bench reflected her determination to achieve a just result.

Whenever a judge approaches each case with fresh eyes, weighing larger considerations of justice rather than merely applying formulas, he or she deepens and expands the common law of the United States. Justice requires judgment. And independent-minded jurists, including those with far more conservative sensibilities than Gertner, help to frame the issues of their times.

Sadly, they aren’t making any more Gertners, or her conservative equivalents. A law-school buddy of Hillary Clinton, Gertner was nominated and confirmed in the first year of the Clinton administration, a time of relative calm for judicial confirmations. Since then, senators have routinely taken to blocking nominees whose records show passion or energy in any political or legal direction. Simply having been a defense attorney can be disqualifying for a nominee.

In blocking such nominees, and thereby making huge swaths of the legal profession all but ineligible for judgeships, senators aren’t enforcing standards but limiting them. The federal judiciary could do with a few more Gertners — and a lot fewer stealth nominees whose greatest credentials are never having taken a stand on anything.