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February 13th, 2011

Onwuachi-Willig: A Melody of Life Experiences?

By Nathan Tucker

Angela Onwuachi-Willig, one of the nine nominees the State Judicial Nominating Commission forwarded to Governor Branstad, wrote a 2009 law review article entitled Representative Government, Representative Court?  The Supreme Court as a Representative Body.  In her article, Onwuachi-Willig, an Iowa Law School professor who was recently described as “a leading scholar on topics of racial justice and critical race theory,” argued for affirmative action on the bench because one’s race affects “how one approaches and perceives the issues in a case.”

Onwuachi-Willig begins her article with the basic proposition that, at “a minimum, we recognize the humanness of judges through concepts such as recusal, which recognizes that judges will, from time to time, have biases, prejudices, or interests that prevent truly unbiased decision-making.”

Though recusal attempts to prevent the usurpation of justice by a judge’s “biases, prejudices, or interests,” Onwuachi-Willig instead celebrates this “humanness” of a judge, arguing that “we are well aware that a person does not cease to be human and strip himself or herself of all predilections or become a passionless thinking machine simply by putting on a black robe and taking the oath of office as a judge.”

Because “it is inevitable that judges’ different professional and life experiences have some bearing on how they confront various problems that come before them,” Onwuachi-Willig argues that “it is important…that courts, especially the Supreme Court, are comprised of individuals who represent a cross section of the country…”

Onwuachi-Willig makes a valiant, though unsuccessful, attempt throughout her article to claim that racial diversity on the bench does not mean that a “wise old man and a wise old woman” would not reach the same conclusion.  Rather, she quotes U.S. Supreme Court Justice Ginsburg for the proposition that:

“[I]t is also true that women, like persons of different racial groups and ethnic origins, contribute to the United States judiciary what… [is] fittingly called ‘a distinctive medley of views influenced by differences in biology, cultural impact, and life experience.”‘

Continuing, Onwuachi-Willig maintains that the “fact is that one’s background, while it may not determine one’s vote, may affect how one approaches and perceives the issues in a case.”  But rather then seeing a judge as an unbiased, neutral arbitrator, this theory reduces the law to a melody of evolving, subjective life experiences.  It is nothing more than legal relativism, changing a nation of laws to one of men.

Despite her claims to the contrary, this idea that the law is a melody of life experiences is nothing more than a euphemism for empathy for one’s own demographic that will affect how one decides cases.  She doesn’t idealize “a diversity of voices—whether due to background differences in race, gender, childhood class status, sexuality, religion, or work—[because it will] enrich the decision-making process” (emphasis added).  Rather, she promotes a melody of life experiences because it will affect the decision-making process.

For instance, using former U.S. Supreme Court Justice O’Connor as an example, Onwuachi-Willig muses that “Justice O’Connor’s status as woman, an outsider of sorts, helps to explain her greater willingness [than former Chief Justice Rehnquist, who was of similar politics] to remedy the effects of race discrimination and discrimination against aliens and her reluctance to accept conduct that condemns groups or individuals to outsider status.”

She also notes that “among the strengths that Justice Thurgood Marshall brought to the Supreme Court were his unique perspectives as a result of his life experiences with race and racism.”  In relating the following quote from Justice Anthony Kennedy, Onwuachi-Willig reveals how her oratorical trappings of “life experiences” is nothing more than a deconstruction of the law to unabashed empathy:

Justice Marshall reminded the other Justices of their “moral obligation as a people to confront those tragedies of the human condition which continue to haunt even the richest and freest of countries.”

Quoting Justice O’Connor, Onwuachi-Willig continues that “Justice Marshall imparted not only his legal acumen but also his life experiences, constantly pushing and prodding us to respond not only to the persuasiveness of legal argument but also to the power of moral truth.”

This is a far cry from the example of Sir Thomas Moore, who served as Lord Chancellor of England under King Edward VIII until his martyrdom.  Illustrating the responsibility of a judge to follow the law despite every bond of life experiences and empathy, Lord Chancellor Moore declared that, “were it my father stood on the one side, and the devil on the other, his cause being good, the devil should have right.”

Judging is not a conglomerate of life experiences, empathy, and one’s own sense of justice; rather, it is to apply the law whether one likes it or not.  As Justice Oliver Wendell Holmes once put it:  “I loathed most of the things in favor of which I decided,” but did so because the duty of a judge was “to see that the game is played according to the rules whether I like them or not.“

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About the Author

Nathan W. Tucker

Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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