Office, Oaths, and Sins

January 27, 2004 | 14 comments
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I work as a law clerk for a federal appellate judge. As part of my work, I routinely assist in the enforcement of legal rules that I think are unwise or even unjust. Of late I have been wondering about the morality of what I do every day.

Of course, my participation in the legal system is not that important. Law clerks of good judges do not decide cases or have much influence on the course of events. I happen to work for a very good judge, and he does the real work of deciding who wins and determining the final shape of judicial opinions. My work is limited to drafting initial versions of opinions, doing legal research, and writing the odd memo on an upcoming case. Nevertheless, I am complicit in the work of the federal courts. I am an officer of the court and before beginning work I took an oath to uphold the laws and constitution of the United States.

In Mormonism we seem to have a fairly robust notion of office. What I mean by this is that we believe that occupying a particular social role does not necessarily make you complicit in any evil that you might advance in fulfilling the duties of that role. The starkest example would be position that the Church has repeatedly taken in war time that soldiers who kill in obedience to lawful orders are not morally responsible regardless of the ultimate justice of the cause being pursued by their army. At a less dramatic level, even if Church doctrine does foreclose being pro-choice, I don’t think that any Mormon would argue that a Mormon federal district judge applying Roe v. Wade or Planned Parenthood v. Casey is acting immorally.

We seem to be less clear about oaths. If we make a solemn promise before God and the law to undertake a particular set of duties, does that oath provide some over-riding moral imperitive to carry out those duties, even when without the oath they would be morally repugnant? Can one take such an oath in good faith? Can one in good faith break it?

It is interesting to contrast our general way of thinking about these things with Islam. Dan can probably provide more insight here than me, but it is my understanding that there is not much of a concept of office in Islam. For example under Islamic law, qadies (judges) are required to apply their best interpretation of God’s law to the cases that come before them. However, the Islamic jurisprudes agree that God’s law is often difficult to discern and reasonable people can disagree about particular interpretations. Thus, a qadi required to decide a case can be genuinely uncertain about what rule to apply. However, neither the office that he occupies nor his good-faith uncertainty will save him from God’s judgement if he gets it wrong. In other words, the qadi is always immediately and directly responsible to God, regardless of his office. Furthermore, the qadies did (and do) seem to take this view seriously. There are stories of prominent legal scholars fleeing medieval Baghdad in order to avoid the eternal danger of being made a judge, and I have a lawyer friend who informs me that in modern Saudi Arabia the qadies will bully parties into a settlement so that the qadi doesn’t have to reach a decision on a difficult legal point.

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14 Responses to Office, Oaths, and Sins

  1. Kaimi on January 27, 2004 at 7:15 pm

    Nate,

    I have to disagree with your blanket assertion:

    “Of course, my participation in the legal system is not that important. Law clerks of good judges do not decide cases or have much influence on the course of events. I happen to work for a very good judge, and he does the real work of deciding who wins and determining the final shape of judicial opinions. My work is limited to drafting initial versions of opinions, doing legal research, and writing the odd memo on an upcoming case.”

    My experience and observation has been that the amount of responsibility of a clerk varies tremendously from judge to judge. I know of clerks who have had tremendous influence on cases during their clerkships, and am aware of cases that were dispositively decided based (almost?) entirely on the recommendation of the law clerk.

    This observation, of course, only makes your underlying question more interesting for those clerks.

  2. Nate Oman on January 27, 2004 at 7:24 pm

    Perhaps. Obviously there is some truth to what you say, but I always wonder the extent to which these stories are in part the basis of clerks wishing to demonstrate their own importance.

  3. Nate Oman on January 27, 2004 at 7:25 pm

    It goes without saying, of course, that I don’t mean this to apply to former clerks in the Southern District of New York.

  4. Greg Call on January 27, 2004 at 7:26 pm

    Just to add a datapoint, I know of two clerks (both are conservative Catholics) that have simply refused to work on death penalty cases as a matter of principle.

  5. Nate Oman on January 27, 2004 at 7:32 pm

    Does this violate their oath to uphold the laws of the United States?

  6. Randy on January 27, 2004 at 7:40 pm

    Nate,

    As a former law clerk who had (perhaps in my own self-important vision of the world) a fairly significant role in the way cases before my judge were decided, and who now works for a fairly large law firm on matters involving primarily corporate clients, I can assure you that the angst you feel now will increase exponentially when (if ever) you move into private practice. When I was a law clerk, I felt like my only objective was to get cases right under the law. Now my task is to convince others that the position that best suits my client is right, whether or not I believe that to actually be the case. Like all lawyers, I have taken an oath to be a zealous advocate for my clients. That, at least in my mind, is a more treacherous task than striving to uphold the laws of the United States.

  7. Randy on January 27, 2004 at 7:44 pm

    Nate, on your subsequent question, Justice Scalia has written an interesting article on the topic. As is normally the case, I disagree with his ultimate conclusion, but he makes a compelling argument. If you haven’t already, you might check it out. http://www.firstthings.com/ftissues/ft0205/articles/scalia.html

  8. Greg Call on January 27, 2004 at 7:51 pm

    Nate: No, this was in state court ;)

    Seriously, I don’t see that the oath would be broken by refusing (with the judge’s permission) to work certain cases. Perhaps the oath actually requires it, if you know that your personal convictions will not allow you to apply the law, um, correctly.

  9. lyle on January 27, 2004 at 7:52 pm

    Nate,

    I actually would, at least in theory, argue that a Mormon judge enforcing an unjust law is violating her duty. Why? For the same reasons that liberals/broad interpretationists use to justify their decisions; i.e. creating imaginary constitutional rights,

    In contrast…I faced this issue during my 1L summer clerkship…where I was assigned to come up with a strategy to make 23(b)(2) class actions capable of including monetary damages possible in a Title VII case as amended by the 1992 CRA. My ex post facto ethical resolution? I told myself that Title VII is the law of the land, regardless of its morality, and that i have to enforce it, as an expression of the ‘agency’ of the ‘society,’ and do so in a strict fashion in order to ensure that the faults of the Title VII system are made manifest.

  10. Nate Oman on January 27, 2004 at 7:57 pm

    It is probably just my obsession with all things contractual, but I find it interesting that folks don’t give more weight to oaths as a form of moral justification.

  11. lyle on January 27, 2004 at 7:59 pm

    sorry…i didn’t clarify. yes, the judge has made an oath; and to God God’s and Ceaser Ceaser’s. Yet God’s trumps Ceaser’s in my book. If I was the judge, I would have to strike down the repugnant law…and whether the judge or not; I’d reather be ‘unethical’ than complicit in the destruction of a living. While the judge might face being overturned, blocking the inaction/enforcement of an unjest ex post facto offense case allows the case to continue down judicial row.

  12. Dave on January 27, 2004 at 10:50 pm

    Nate,

    Procedural due process is the best we can do to procure real-world justice, but at least that is an attainable and objective goal. Yes, each of us must subordinate our personal moral claims to some extent, but so must others who hold their own less noble, even bizarre, moral views. If the end result of our “compromise” is the best attainable, objective system of real-world justice, there is no basis for worrying over the morality of the “compromise.”

    Of course, a person is generally free to choose to avoid situations or even professions that infringe on their personal moral perspective, and I support such choices as to that person’s own conduct. But I am frankly rather suspicious of those who go beyond simple avoidance and assert the supremacy of their personal moral claims over the outcome of fair and open procedural due process. It’s a form of double-dealing on the social compromise outlined in the first paragraph.

    Mormons are fond of regarding their own moral convictions as more privileged than everyone else’s. Thus some above speak of “unjust laws” that a Mormon judge should not enforce. I would discourage that line of thinking as both unwise and unwarranted, and I know of no Mormon judge who espouses that position. I believe our collective moral sense is not so refined or accurate that it can declare a particular law or position unjust. We’ve all got a beam in our moral eye, which means we could be wrong even when we think we’re right.

  13. Nate Oman on January 28, 2004 at 8:50 am

    Dave: surely some humility about our own certainties is justified and procedural due process is wonderful, but in what you write above you make it sound as though Mormons, once they have been chastened by their own arrogance, should give up normative analysis all together. Should humility about our own certainty really preclude us from saying that a law is just or unjust? This seems like a dangerous kind of quietism. Some laws actually ARE unjust, unless you believe that with the USCA 2003 we have finally achieved the Kingdom of God. By and large, I don’t think that judges should refrain from applying laws that they think are unjust. (I don’t want to say never.) On the otherhand, I don’t think this is because we are somehow crippled in our ability to figure out if laws are just or unjust.

  14. Adam Greenwood on January 28, 2004 at 2:49 pm

    In the hypothetical you propose, Nate, I think it goes without saying that the problem with performing the Oath wasn’t obvious at the time of making it? I promise to sell you grain before I discover you’re making moonshine with it, etc. (Of course, an oath is more serious than a promise, perhaps, but the analogy still holds good).

    I think that highlights the real need for circumspection in making oaths. They should be made narrowly.

    Why? Because, in answer to your question, an oath is a high moral obligation, the fulfillment of which might justify things not normally justified. Breaking an oath is treason to God, who has witnessed it.

    I’ve always thought one of the most inspiring parts of the Constitution (not wisest parts, mind you, but most inspiring) is the provision for oaths. The Court relies on it in cases concerning the gravity of the Constitution and obedience to it.

    In any case, Nate, there’s another consideration. The good of our society probably outweighs whatever bad you help facilitate in your role as law clerk.