by Richard Prior
Staff Writer
The “label debate” that today passes for reasoned discussion doesn’t even draw a thread of blood from its skin-deep analysis.
“I think we have for too long cheated ourselves by permitting facile, but meaningless, phrases to take the place of substantive conversation,” Judge Rosemary Barkett told the Jacksonville Women Lawyers Association Friday.
Two specific labels targeted by the judge were “judicial independence” and “judicial activism.” The former is readily understood to be a good thing, she said. The latter “is actually a euphemism to describe a decision with which the user does not agree.”
“I find the successful demonization of this phrase very distressful,” Barkett added. “In the public mind, and even in the writing of many legal academics, the phrase ‘judicial activism’ has come to be accepted without question as the equivalent of bad judicial action.
“But in fact, every judicial action operates within a range of activism.”
A member of the 11th Circuit Court of Appeals, Barkett was one of only two women to graduate from law school at the University of Florida in 1970. She began practicing law in West Palm Beach.
Gov. Bob Graham appointed her a circuit judge in 1979 and a 4th District Court of Appeal judge in 1984. The next year, he made her the first woman to sit on the Florida Supreme Court. She served as chief justice for two years.
The former nun and teacher received the Judicial Achievement Award in 1986, the same year she was inducted into the Florida Women’s Hall of Fame.
Relying on labels in place of substance, Barkett insisted, “keeps us from any constructive debate and keeps the public misinformed about the nature of the judicial process as well as its relationship to the other branches of government.”
“Judicial independence” — the “good” phrase — allows judges who act in good faith to decide cases without fear of repercussions because of the outcome.
Though “judicial activism” is commonly understood to be a disparaging term, she said, “the only valid meaning is that it is a neutral, Constitutional job description. At best, it is a useless method of taking issue with a particular judicial decision.
“It says simply that a judgment is bad, but fails to explain where it went astray.”
Blame for the trend got spread around during Friday’s talk — from the media and the public to those in the legal profession.
“We have been too willing to accept labels without question or challenge and even use them ourselves,” said Barkett. “It permits what should be important, substantive debate to take a meaningless, and ultimately unilluminating, form.”
Those in academia, she said, understand the problem but are too often busy writing “only for one another.”
Lawyers who have acquired skills of “insightful analysis” leave those skills in the courthouse instead of taking them out into the world.
Judges contribute to the problem by often failing to spell out the analytical steps that led to their conclusions.
“And a great share of the responsibility is shared by the media,” said Barkett. “Concepts of independence and investigative reporting seem to be suspended when reporting on ‘label debates.’
“Journalists often do not ask substantive questions, they simply report the accusations of both sides.
“Too often, I believe, reporters treat the labeling war as if that were the substantive story rather than addressing the underlying issues in dispute. Such a skin-deep approach to legal reporting both underestimates the public and does them a great disservice.”
Barkett insisted she was not calling for an end to criticism — of the judiciary or any other body. But she did insist the criticism should have some meat around the bone.
“Individuals and concepts that are labeled are stripped of their identity,” she said. “It’s not the real person or the real idea that is misunderstood or debated. There are no merits or demerits to be analyzed, compared, weighed.
“They are no longer real people or real ideas, but merely vacant shells, empty vessels which are filled with generalized, often unexamined, perceptions.”