The new tax bill has generated significant controversy by seeming to violate the president’s vow during the campaign that he would not sign any bill that cut even a single penny from Medicare, Social Security, or Medicaid. In fact, while Medicare is thus far intact, the new law makes deep cuts to Medicaid: about $1 trillion over the next decade, with eligibility tightened, new work requirements (including more frequent re-eligibility checks), and limits on provider funding. These changes are projected to strip coverage from as many as 17 million Americans, particularly low-income individuals, children, and rural families.
And while it doesn’t directly cut Social Security, the cuts implemented earlier at the Social Security Administration have led, for the first time in history, to checks being delayed. Ten Social Security field offices have closed, and up to 50 more are slated for closure.
Of course, this isn’t the first time a president has ignored or abandoned promises once in office. The first President Bush, for one, may have cost himself re-election when he agreed to raise taxes despite his famous “Read my lips — no new taxes” campaign pledge.
The most egregious example, though, was probably Woodrow Wilson. In 1916, Wilson campaigned for re-election on the slogan, “He Kept Us Out of War,” referring to what later became known as World War I. Wilson was sworn in on March 4, 1917; less than a month later, on April 2, he appeared before a joint session of Congress to ask for a declaration of war against Germany. True, things had changed somewhat since the 1916 campaign, and only Congress could actually declare war. Nevertheless, Wilson wasn’t exactly dragged behind yelling, “No, stop, wait!” either.
Judges have similar problems; sometimes they come to the bench from years of being a prosecutor or a defense lawyer and suddenly must step into the role of neutral decisionmaker. Judges also are often presented with different sides of various issues and may realize, after deciding an issue a certain way for several years, that their previous decisions were mistaken.
Some judges have candidly admitted the error of their past ways, whether in a previous life as an advocate or in the current one as a judge. One of the most forthright was a 1986 case involving California appellate judge Richard Sims of Sacramento. In a case involving an obscure sentencing issue, the court’s majority had to ignore another decision written a year earlier by Sims.
Sims wrote in a concurring opinion in which he thanked his fellow judges for “treating with charity” his earlier opinion—distinguishing it without coming out and saying he had been wrong. But Sims was more direct. “I write separately,” he said, “to fall on my sword. Although his earlier opinion reached the correct result, its analysis was wrong “because I inexplicably failed to discover the controlling statute.”
Sims added that this was actually the third time he had discussed this issue and, “The good coming of all this is the knowledge that, having taken all conceivable sides on the issue, I must certainly at some point have been right. Unfortunately, it too obviously follows that I must also have been wrong.”
Not to fall on his sword all by himself, though, Sims cited a 1950 decision of the U.S. Supreme Court, in which Justice Robert Jackson wrote a similar concurring opinion. Prior to his appointment to the high court, Jackson had been the U.S. Attorney General, and in the 1950 case, Jackson admitted that, while he agreed with the court’s decision, it contradicted an opinion he had written ten years earlier as Attorney General.
Like Sims, Jackson also looked to what other judges in this embarrassing position had done. Justice Joseph Story, who served before the Civil War, once recognized that a former opinion contradicted the position Story wanted to take in a later case, stating, “My own error, however, can furnish no ground for its being adopted by this court.”
A British lawyer named Baron Bramwell, according to Jackson, extricated himself from a similar embarrassment by saying, “The matter does not appear to me now as it appears to have appeared to me then.” Or perhaps, said Jackson, a judge could simply rely on the words of the English writer Samuel Johnson, who explained an error in a dictionary he had compiled with the simple statement, “Ignorance, sir, ignorance.”
But Jackson saved the best for last, a response by the British judge Lord Westbury to a barrister who tried citing one of Westbury’s own opinions back to him. “I can only say,” replied Lord Westbury, “that I am surprised that a man of my intelligence should have been guilty of giving such an opinion.”
Presidents undoubtedly should keep Jackson’s list close at hand, too.
Frank Zotter, Jr. is a Ukiah attorney.
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