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Judge Thompson Reminds Fellows "A Level Playing Field Is Not Enough"

March 9, 2018 - 11:12

The honorable Myron H. Thompson, a judge in the United States District Court of the Middle District of Alabama, as past president Joan Lukey of Boston, Massachusetts, said in her introduction, is famous to most Americans, even if they don't know him by name. Judge Thompson is the federal judge who ordered then Alabama State Chief Justice Roy Moore to remove the monument of the ten commandments from his state courthouse. For an African American judge to take on the immensely popular state Chief Justice Roy Moore took an immense amount of courage. 

President Jimmy Carter appointed the Yale Law School graduate, Judge Thompson to the federal bench when he was only 33-years-old and he was confirmed, a remarkably brief nine days later. Since that time, not only has he issued the courageous Ten Commandments decision, he also issued another important abortion rights decision in 2014, by ruling unconstitutional Alabama’s “Women’s Health and Safety Act,” which required all doctors performing abortions in Alabama to have privileges at local hospitals. The requirement in that Act would have effectively deprived most women of their constitutional right to an abortion because these procedures are overwhelmingly performed in abortion clinics by traveling doctors who do not have privileges at any local hospitals.

Judge Thompson began his remarks during General Session at the Annual Meeting in Montréal with a bit of humor, stating that many attendees assumed that anyone from Alabama would begin remarks with a sports metaphor but that he (unlike most Alabamians), is uninterested in football. However, despite the issues of grave importance which the judge has decided over the years, he made news for being a judge who denied lawyers a continuance to accommodate a football game. “That in Alabama, is like man bites dog.” In that case, at a hearing in May, the judge had announced that trial would start on January 7 of the following year. One of the lawyers arose after conferring with his fellow twenty-nine lawyers and requested that the trial be postponed for a week. When Judge Thompson asked for the reason, the lawyer stated that on the trial date proposed, there would be a national college football championship being played. When the Judge remarked “this is May,” the lawyer responded, “but Alabama will be playing.” Judge Thompson responded, “that is conjecture” to which the lawyer retorted “no, Judge, that’s a certainty.” After taking a recess to confer with his law clerks, Judge Thompson came back and said, “I agree to that motion if Alabama plays Yale”. To which the lawyer responded, “Judge, in my view, Yale’s playing the National College Football Championship is an impossibility.” Judge Thompson responded, “I share that view but only as to your motion.”

The Judge then turned to the theme of his talk, “a level playing field is not enough.” Judge Thompson described his meaning as follows: A level playing field is a field where everyone is treated fairly. How can we level the field? Only if judicial independence is ensured. Judicial independence is the “wall we erect against bias. It is the wall we have built around the field to help in assuring that it is level.” The second requirement for a level playing field is neutrality from judges. While the wisdom of past experience can be helpful in judging, judges need to be on the lookout for the narrow difference between helpful experience and harmful bias. Judge Thompson described his predecessor on the bench, Judge Frank M. Johnson Jr, as the embodiment of a judge who knew that difference.

Judge Johnson had grown up in the South, steeped in Southern experience, but never allowed that experience to turn into bias. He was a Southern white judge who grew up with segregation and then dismantled “that pernicious social institution brick by brick.” He was a judge who cared about those members of society forgotten by most people, including the mentally ill and prisoners locked up in state institutions, and  made decisions honoring their constitutional rights. He was one of the first judges in a society that tried not to acknowledge the existence of those with different sexual orientations to recognize their right of privacy.

Judge Thompson told a moving story about a ride he’d taken in an Uber the prior day. He had asked the driver if he was Canadian and the driver replied that he lived in Canada but was actually from Rwanda. The judge hesitated to ask any questions about whether he had experienced the horrors of his country’s not so distant history. Nonetheless, the driver told him his personal story, which the judge told the audience paraphrased in the first person below:

“My family and I heard these huge bombs and sought refuge in a church. We all spread ourselves out on the floor trying to protect each other. Rebels eventually broke in to the church. I heard people screaming and saw the machetes coming down, saw limbs and even someone’s head being cut off. Suddenly I was unconscious, and I don’t know what happened to me. But when I woke up it was days later. I started to run. I looked around and there were pieces of bodies, lots of blood. I was sixteen years-old and I just kept running, hiding and running until I got to the Congo. I heard that in South Africa, there might be jobs because the apartheid was no longer in place. Then I heard that Canada was offering these visas for people like me who wanted to start a new life. I applied, and I got one and eventually came to Canada. I went to the University of Montréal, got a nursing degree, started a new family and now have four children.” 

The judge then paused and said that the Uber driver then said something so powerful and touching that he would not paraphrase but would read his exact words: “Canada got me back to being a human being.” Judge Thompson pointed out that those beautiful, perfect words were probably also said 200 years ago by Harriet Tubman and slaves running from Alabama to Canada. To the Canadians in the audience Judge Thompson said “no one can say anything more beautiful about Canada. No one, no one can say anything more beautiful about any country. And I thank you, Canada. And I am so proud. Sometimes you have to leave your own country to find who you are.” 

“You can’t say, ‘Rwanda, we feel sorry for you. We sit comfortably in Canada. We sit comfortably in the United States. Because we have these institutions that will never let what happened in Rwanda happen here.’” After all, the German judiciary was as independent as the American judiciary and that didn’t stop Hitler. The federal Southern judiciary was independent and had as many institutions as the current day, but it didn’t stop Jim Crowism or lynching. The only thing that stops the most heinous acts is being a human being and acting separately and individually to stop tyranny. Each lawyer and judge, acting separately and individually, along with the noble ideals of judicial independence a level playing field, is responsible for the ideals of the law. “In short, each of us must be about being a human being.”

Article from the Journal, a national and international award-winning pblication for Fellows of the College.

Original article by Lisa G. Arrowood, Boston, Massachusetts

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Honorable Myron H. Thompson