Chapter 6: Judgeship: Idealistic Misfit In a Pragmatic World

In the late spring of 1986, Gov. Kay Orr appointed me as county judge in central Nebraska. I had enjoyed judicial philosophy in law school and had come to love Jerome Frank’s book, Law and the Modern Mind. I understood that the judicial role was not just pragmatic, but had a high social function, not only of enforcing the law, but of helping to encourage respect of the citizens for the law in the interest of social justice under the law. Throughout law school, I had the highest regard for the professors in that they cared about what the law provided, how it coheres with basic principles, or does not, and how it provides for efficient and reliable planning for the future. In my early practice of law, I received some unexpected results from a number of judges who took a pragmatic view of the law which, to my view, underscored the principle: don’t rock the boat. Sometimes I appealed and obtained a reversal of that “practical”result, and sometimes not. I also often heard a number of attorneys in central Nebraska speak of our district judge, “He may not follow the law, but he does what is fair.” A large part of my practice at that time was representing businesses and banks whose practices were governed by the Uniform Commercial Law, the purpose of which, as the name suggests, was to provide the means for banks and businesses to plan for their futures by applying that law to their transactions. Nothing would be more unfair and detrimental to efficient and reliable commercial practices than to abrogate the very law upon which they had relied for what a judge thought was fair.

Jerome Frank was known as a “legal realist” who inquired into how justice is rendered by the judiciary. He speaks of the fiction of the “unbiased judge.” There is no such thing. As human beings, we cannot help but be biased. It is part of the human condition. The remedy is not to be found in pretending that we have no bias, but rather, in recognizing those biases as such so that we can adjust for them in the interests of justice. He addresses laws that are clear in their language and in their application, and those that fall in the “penumbra,” which hovers between light and dark, clear and unclear. Of course, in criminal law, there cannot be a proscription that lies in the penumbra. In order to convict of a crime, not only must the proscription be clear, but a conviction must be upon evidence beyond a reasonable doubt. However, in the civil law the level of proof is by a preponderance of the evidence. When the civil law intimates a result in circumstances similar to the facts of the case to which it is applied, but not clearly so, it is considered to be in the penumbra, as Jerome Frank described it. It is then appropriate that the judge examine the law to determine its “legislative intent” as concerns its application to the particular facts. In other words, the judge considers the process of legislation in passing the law under consideration: what did the legislative discourses show were the purposes of the law, why was it introduced, what was hoped to be accomplished by it, what were concerns discussed concerning its scope, its applications or its possible impact. Even then, the judge is not free to make his own law, but is required to apply the law consistent with that evidence of its intent.

In criminal law, I examined the various purposes of sentencing, including punishment, deterrence, social catharsis and retribution. I also had to articulate the distinction between judging the act and judging the person. It was my intention that, no matter what my sentence, it would help that person to become law-abiding and would promote the general public’s respect for the law. I have written more extensively of my judicial experience elsewhere.
My appointment as county judge required that I have my “home court” in Custer County. I commuted from Ord, a 50 mile trip each way, for a year until we could sell our Ord home and buy one in Broken Bow. We bought a run-down Victorian home there with the idea of “fixing it up.” We moved to its county seat, Broken Bow. In the next block north of our home was the Episcopal Church, and next to that was its priest’s rectory or parsonage. I met him, Tom Hansen, and we had occasion to visit concerning religious matters. He had a number of books concerning theology that embraced the human condition, not as “fallen,” but as holy. He loaned many of them to me.

One of those books was Affirming the Human and the Holy by the Catholic nun, Philomena Agudo. In contrast to the fundamentalist notion that man is fallen and this life corrupted, Agudo finds this life and the body to be holy. She notes that the self innately desires integration and is transcendent in character, seeking to reach out beyond itself. Because of that capacity, we are also able to change and reshape our characters. Mental health requires affirmation of one’s real self. “Emotionally dependent persons tend to have to habitually suppress their feelings. They so hunger for acceptance and love that they dare not express any negative feelings for fear of rejection.” “If the human body, or life itself, is a gift from God, the person has responsibility to take special care of that gift.” Indeed, she notes that a simple definition of sin “is behavior that tends to destroy oneself and others.” Christianity as it has become has placed too much emphasis on the evil of man. “The individual who is able to recognize and appreciate the holy in himself or herself transcends human limitations and comes in contact with God.” “The human needs salvation. Salvation is possible only when the individual accepts his or her need to be liberated from inhibiting idols.” Here, again, I found myself returning to Eric Fromm. And what I found refreshing with Agudo was that she was unapologetic about the physical body, including sexuality: she quotes Washbourne to say, “every human being has a’sacred obligation’to his or her own body.… Sexual structures in the body revealed the human and the holy.” Indeed, she concludes, “Human sexuality has its spiritual and physical dimensions that must never be ignored.”

At about the same time, I read with interest another book, The Ascent of Man by J Branowski, that, far from excoriating humankind as evil, celebrated it. “The human baby, the human being, is a mosaic of animal and angel.” He notes that the history of man is unequally divided. His biological evolution spans millions of years, but his cultural history goes back only about 12,000 years. There are a number of turning points in human history. One of those is, after millions of years of evolution, the decision to leave their nomadic life to become villagers. He cites the Old Testament as a record of that decision. “The Bible has a curious history, part folklore and part record.” The life of the nomad is without features, without memorial. However, when the nomad ceases to follow the natural migration of wild herds and settled down to domesticate sheep and goats, mankind takes on the duty of leading the helpless herd. A turning point in agriculture thereafter was the cultivation of wheat with a large head of seeds. In its turn, “Settled agriculture creates a technology from which all physics, all science, takes off.” From that, one of the most powerful inventions in agriculture is the plow, as a “lever which lifts the soil, and it is among the first applications of the principle of the lever.” The wheel was developed and used before 3000 BC in what is now southern Russia. In Sumer and Assyria, the wheel was used as a mechanical device to draw water for irrigation. The horse was first used to draw wheeled carts, like an ox, and then about 2000 BC men discovered how to ride it. From the use of the horse, warfare developed. But, Bronowski notes, war is not a human instinct. Rather, “it is a highly planned and cooperative form of theft.” Thereafter, the various handicrafts developed: “the hand is the cutting-edge of the mind.” Copper was early discovered and used, but it would not hold a sufficient edge to be an effective weapon in war. Seemingly by accident, when copper was united with an even softer metal, tin, it paradoxically became a stronger metal that would hold the edge of the sword: bronze. Only in the 20th century was the atomic explanation of that result discovered. The making of steel was developed in the process of making the Japanese sword, guided, not by chemical analysis or principles, but by ritual. Just over 2000 years ago the Chinese made the first reference to alchemy. Gold was precious, not because it was scarce, but because it was incorruptible. Alchemy was more than magic: “It was from the outset a theory of how the world is related to human life.” Although these analogies have many times led to remarkable discoveries, often apparently unrelated to the modern scientific explanation, “Every theory is based on some analogy, and sooner or later the theory fails because the analogy turns out to be false.” Jerome Frank called it “as if thinking.” When we failed to recognize the analogy and treated that process as an the equation, we are misled. Similarly, Bronowski notes, modern medicine was stymied until about 1500 because it assumed the principle of “vitalism:” that all cures must be derived from some form of life, plant or animal.

Speaking of medicine, I am reminded of Bill Moyers’ public television series entitled Healing and the Mind, later transcribed to book form. He notes the function of “belief” in the efficacy of many, perhaps most, paradigms of medical health and healing. For example, in the United States, and most industrialized nations, surgery is rendered possible by chemically disabling the conscious, but in China, the same effect is achieved by acupuncture. Each model has its limits and each its special advantages.

Upon our arrival in Broken Bow, we were privileged to have a special minister at the United Methodist Church: Gil Jackson. Gil had a background in the Mennonite church, in which my Grandma Wheeler grew until marriage; he had also been a professor of philosophy prior to his ministry and ordination in the United Methodist Church. He was a special friend. He knew my interest in philosophy and theology, particularly in Process philosophy and theology. One day he told me that Marjorie Suchocki, a process theologian, would be presenting at a continuing education seminar in January, 1989, for United Methodist pastors concerning process and prayer. He referred me to two of her books: Process and Prayer and God, Christ, Church: a Practical Guide to Process Theology. In the first, she introduces the reader to three principles of process theology: 1) all existence is relational, 2) relations are internal to who we are, and therefore have an effect on who we are, and 3) to be is to have an effect on others. “What happens to one happens to all.” “Well-being cannot be limited to a few.” “We are called to forms of redemption in this world, as fragmentary as it may be.” “You are your prayers. This is why we can pray without ceasing. It is a will toward conformity with God.” “Sin is a lie. Confessional prayer clears the path.” “To fail to consciously acknowledge is to endorse the sin by omission.” “Unnamed sin is perpetuated sin.” “Hatred is a fire that consumes. Pray for people that you do not like.” “Pray from where you really are; not from where you ‘ought to be.’” “In this finite life, death is a cheap price for the glory of life.” “Death completes life and brings it to life’s fullness.” “The value of prayer is relational.” In her latter book, she expresses a notion relating to the premise of Jesus Through the Centuries: “implicitly or explicitly, positively or negatively, Christians tend to express faith in ways which are generally compatible with dominant understandings of the world.” At the seminar, the Fellowship of Learning, she made the point that the notion of the Trinity “is not two men and the bird, nor is it tri-theism. It is a metaphor.”

The Spiritual Diseases of Alcoholism and Other Addictions

After I was installed as County judge, but before I took my own courts, I was assigned by the court administrator to observe Judge Finn in an adjoining judicial district. At the end of the first day of observation, I noted to him that it appeared to me that about 90% of all misdemeanor offenses tried by the County Court that day were associated with the abuse of alcohol. He concurred with that observation. I found that to be true throughout my own court experience; but it was even more marked in Broken Bow.

Broken Bow and nearby Ansley had a cluster of many mini-ghettos in which presided a large number of American Indians, primarily from the Lakota tribes in Pine Ridge and Rosebud in southern South Dakota. And indeed, the county and Broken Bow are steeped in US /Indian history and relationships. Of course, the county, itself, was named for the infamous Gen. Custer-turned-hero, which would seem to honor the general who, largely through his own hubris, was “the victim” of the people that he had come to destroy: tribute to a “victim” of Indian resistance. Tradition has it that Broken Bow was named for an incident when the local post master’s son found a broken bow in the area: representation of the early settlers’ fear of the inhabitants whose land they invaded and took as their own under a notion of “manifest destiny,” a notion not dissimilar to the ancient Jewish notion of “the Promised Land.” Upon conquest of the area and its prior inhabitants, the Broken Bow High school elevated their own self-image by “honoring” the conquered as its mascot: the “Broken Bow Indians.” Some years later an Indian reservation jocularly took on a reverse version of the same notion, adopting as its mascot, “the Fighting Whiteys.” An interesting juxtaposition of contradictory values. And so it was with the relationships of our Indian population in the local and national societies of that day.

One of my most intriguing classes in law school was Indian Law. Talk of contradiction and duplicity as the foundation of all that we are today! We invaded the land of the Indian and justify it by notions of manifest destiny; the Indians were decimated by our European diseases and our technologically advanced weapons; they struck a deal to give the Whites what they wanted and to obtain relief and some conditions to protect themselves and their way of life. The Whites broke the deal to get a better deal, the parties struck a new deal to secure peace and security for the Indians. That happened repeatedly across Indian country, from East to West. When the Indian inhabitants were fully conquered, they were relegated to reservations, often in areas entirely foreign to them, considered by the white conquerors at the time to be valueless property, declaring the Indians sovereign within their newly-assigned, diminished territory, but dependent upon the conqueror-now-become- protector and guardian. In the last forty or so years, as American Indians have recovered some of their self respect and have challenged the US government to account according to its fiduciary duties for financial gain that it obtained in its management of Indian resources; the US government now asserts that they cannot accounted for its management – inadequate records, but that there is no remedy. Sound dysfunctional?! It is, and yet we continue to maintain laws that keep the American Indian subject to federal law, subject to federal supervision, yet proclaim their sovereignty.

I came to believe that the only resolution to “Indian welfare” is to offer to all Indian tribes to abrogate all agreements that keep the American Indian subjugated and dependent. Authentic living can never be based upon a lie. If a healthy relationship is ever to be established, the deceit must be acknowledged and accountability had. The argument may be that full accountability is unattainable. That may be true, but at some point the slate must be cleaned. It may be that an interior country is undoable, but Indians must be given that option, in which they will succeed or not, but it will be a choice they make.

Early in my judicial career, County judges were invited to the drug and alcohol treatment center at Valley Hope in O’Neill. I chose to participate in that. We took the same mental health testing administered to patients, and likewise counseling – except that our counseling included an opportunity to discuss with counselors the issues of alcoholism and drug abuse and how it is treated. We were invited to sit in on group sessions and meetings and mingle with the patient’s as we wished. I was impressed with the AA twelve-step program and how patients were benefited by the treatment and the program. We observed as patients worked their way through the steps of the program, beginning with an individual acknowledgment of powerlessness and inability to manage our lives. The second step is to acknowledge that a power greater than we are can restore us to sanity. Eric Fromm, in Psychoanalysis and Religion writes: religion gives us a sense of orientation and an object of devotion. When that “object of devotion” is something other than that which is life-affirming, then our orientation is not toward living but escaping, whether alcohol, drugs, or anything else. The Twelve Steps does not define or limit religious conviction, but helps us to assess how effective we have been in living and how we might reorient and redefine our goals to live more effectively. These are the steps as originally defined in the context of alcoholism, but applicable to any dependency that keeps us from full life:

The Twelve Steps

We admitted that we were powerless over alcohol — that our lives had become unmanageable.
Came to believe that a Power greater than ourselves could restore us to sanity.
Made a decision to turn our will and our lives over to the care of God as we understood Him.
Made a searching and fearless moral inventory of ourselves.
Admitted to God, to ourselves, and to another human being the exact nature of our wrongs.
Were entirely ready to have God remove all these defects of character.
Humbly asked Him to remove our shortcomings.
Made a list of all persons we had harmed, and became willing to make amends to them all.
Made direct amends to such people wherever possible, except when to do so would injure them or others.
Continued to take personal inventory and when we were wrong, promptly admitted it.
Sought through prayer and meditation to improve our conscious contact with God as we understood Him, praying only for knowledge of His will for us and the power to carry that out.
Having had a spiritual awakening as the result of these Steps, we tried to carry this message to other alchoholics, and to practice these principles in all our affairs.

That experience at Valley Hope, together with the sum of my prior experiences, influenced my judicial philosophy and practice. If alcohol is associated with such a large percentage of criminal behavior, and if it is strongly related to ineffective living patterns and stuck behaviors, then sentencing must be directed toward encouraging transformation to better and more effective ways of living that are more consistent with the larger society. Although the criminal law prescribes a particular range of penalties, yet it also permits probation subject to certain remedial remedies.

It appeared to me that many of the American Indian population in our area were disconnected from their roots and had found refuge in alcohol or drugs. The incidence of alcohol abuse and associated petty criminal behavior in our Indian population was much greater than it was in the non-Indian population. In order to better understand how the lives of so many of our local Indian population had become unmanageable and dysfunctional, I asked our probation officer, Jeff Kawada, to go with me to visit the Pine Ridge and Rosebud reservations to discuss with leadership there the Sioux way of life, issues they confront and effective ways to help our local people to live more effectively.

We went first to the Pine Ridge Reservation at Pine Ridge, South Dakota. We met with tribal leaders there. While there, I visited an art gallery of American Indian art. I was familiar with stylized American Indian art, but here I saw the work of artists who, rather than throwing back to the past, reflected the conditions of their lives, their challenges, and their aspirations through what I would call authentic art reflective of the present times as influenced by the past. We also saw Indian housing which reminded me of the Bronx in the 1960s, a lawless and ravaged ghetto. Dominant white-Anglo-Saxon society complained that we “gave” them houses to live in, but they did not appreciate our generosity and then stripped “the gifts” of wiring and copper pipes to sell for alcohol. It was evident that the houses had been stripped, but the notion of magnanimity unappreciated utterly missed the mark. There was evidence of construction within the city, but the construction equipment was surrounded with tall wire fences, topped with looped razor wire. One might ask why “the Indians” would steal the very tools and materials to improve their lot as a people and as a nation. Interesting to me that a people who bargain, break the bargain, renegotiate more favorable terms, break that bargain and renegotiate the next, ad infinite, call such deplorable behavior “Indian giving.”

Pine Ridge was in reality a ghetto city located in isolation within apparently desolate Plains. There was little naturally “Indian” about it. Isolated, of course, except for the town of White Clay, Nebraska, just a mile south of Pine Ridge, South Dakota. It was located just across the border of the reservation in Nebraska; it was built for the sole purpose of locating sales of alcohol to a defeated-become-dependent population within walking distance of their homes in Pine Ridge. That mile of road connecting the two villages was strewn with empty, discarded beer cans, bottles and other artifacts of alcohol dependency and despair. It appeared to me that white society had not only uprooted the American Indian, but also made them dependent upon federal laws, and then took commercial advantage of their conditions.

The next day we visited a FM radio station near Rosebud which was the cultural, social and political voice of the people of the reservations. We discussed the frustrations of Indians as a “dependant sovereign nation,” their accomplishments and aspirations. Later that day, we stopped at the site of the wounded knee massacre where, a second time, federal agents, enforcing the “law” and responding to fears of dominant American society, shot and killed Indians, this time members of AIM who recalled the prior atrocity and dared resist. We visited the cemetery, and while there, we were approached by some young Indian men. We had been warned that it was dangerous to “tread on sacred Indian ground.” Although intensely uncomfortable, it at least was an honest encounter in an environment where the indigenous people whom we have named for a European miscalculation were not intimidated but felt “at home.”

One of the impressions that I had of that experience was that the political invaders that we call “Americans,” became frightened of the spiritual power of the native peoples, so, upon conquering them, to keep them in submission we outlawed their ritualistic expressions of that spiritual union of humankind and nature. Of course, as in South America, the missionaries followed the conquest seeking to convert the native populations to Christianity, to “save them.” The Indian people became “soul-less,” or lost souls, replacing that void with alcohol, drugs, or other ritualistic behaviors. For an excellent article featuring the Indian viewpoint on these issues and the progress or lack of progress that they are making, see National Geographic, August 2012, “In the Spirit of Crazy Horse: Rebirth of a Sioux Nation.”

I had hopes of being able to adapt my sentencing styles and practices in a way that would affirm the individual as a person of worth and encourage filling the void with something of meaning and value. When the prosecutor in Custer County learned of my intentions, both with Native American criminal violations and alcohol related violations, he regained control and power by not prosecuting such violations in court, but imposing his own programs under the threat that the court would order something much more “onerous.” Before that happened, I had an occasion to take a defendant’s plea of guilty to driving while intoxicated. I heard nothing more of it until 10 years later I received a telephone call from a man who identified himself and had called to thank me for 10 years of sobriety. I recalled his name because he was one person that appeared before me and that I sentenced upon a third or fourth conviction for driving while intoxicated. He said that I talked with him at sentencing, when I told him ,”I think I see something in you that you are not seeing.” He said I then proceeded to give him the maximum penalty, which included 30 days in jail, but that he felt respected nonetheless. He said that when he got out of jail, he went back to undergraduate school, got his bachelor’s degree, then got his master’s degree, as I recall in medieval literature, and was at that time expecting to begin doctoral studies. He said that he was calling to thank me on the 10th anniversary of his sobriety. Ten years later, he again called me to thank me for my part in his 20th anniversary of sobriety. That, for me, even though I played only a small part of his first step toward sobriety and wholeness, made the judgeship worthwhile.

In the last couple of years of my judgeship, I came across a biography of Dietrich Bonhoeffer by Eberhardt Bethge. He notes that for Bonhoeffer, ethics is helping people “to share in life, it is the Christ-like in the midst of the human.” He quotes Dietrich Bonhoeffer concerning his sense of being led: “It is strange that I am never quite clear about the motives that underlie my decisions. Is that a sign of vagueness, of intellectual dishonesty, or a sign that we are lead on beyond what we can discern, or is it both?” I could relate to that in what I described once as “happy accidents” where, throughout my life, something good happened that I did not plan for nor did I anticipate, but for which I was grateful. The biography noted that Bonhoeffer supported Bultmann’s theology. That led me to the book, The Promise of Bultmann by Norman Perrin. Bultmann was a New Testament scholar. He was active in the Confessional Church, as was Dietrich Bonhoeffer, and, with Bonhoeffer, he refused to modify his lectures to suit Nazi demands. One of his concerns was to accurately interpret the New Testament to discover the writer’s intention and to determine its meaning for the reader in the reader’s world. For him, the task of theology is “to understand what they say in their language in order that we may say it in ours.”

In the spring of 1990, I was subject to evaluation by lawyers of the Nebraska Bar Association-sponsored judicial survey. Although the court administrator and the chief justice of the Nebraska Supreme Court appreciated my diligence and contributions to the orientation of new judges and continuing judicial education, the attorneys who responded to the survey rated me and another County judge as the worst judges in the state. That was painful and I felt abandoned, and desperate. I was given about a month’s advance notice before the survey was made public. At that time, the public was given a preface to the results which claimed that the survey was valid and that it could be relied upon to determine whether they would vote to retain or not to retain that particular judge.
Neither I nor the other judge identified as the worst in the state were retained in the election that November. I undertook to return to the practice of law, and the other judge left the state of Nebraska. I have discussed this further elsewhere. I was distraught.

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