Inside Our Judicial System

Six years ago the General Assembly elected me to a new class of the Assembly's Permanent Judicial Commission. Elections occur every two years. They create, if you will, three two-year sessions for each commissioner. Every two years this transition brings an interesting change of style and personality as the new class arrives. Each new class constitutes at least a third of the membership.

What I wish to reflect on is how this change process affects the manner in which judicial process is carried out. Everyone knows that the make-up of the PJC is as diverse as it possibly could be. There is the obvious diversity. Of the 16 members, one from each synod, half are ministers, and half are lay persons. Traditionally, lay elders come from the legal arena — attorneys and judges. It is not without interest that many minister commissioners also have degrees in law, assuring that the ethos of civil legal practice has a major impact on how the commission conducts its work.

Add to this the mix of personality, temperament, education, interests, generation, geography and roots. Then there is the diversity of gender and race. Assembly nomination practice, following Book of Order guidelines, seeks to propose a commission that is balanced at each of these points. It has also been traditional to include a balance of experienced stated clerks from middle governing bodies, or experience on presbytery commissions on ministry, and prior experience in judicial process. Others may have limited background at these points, bringing instead pastoral commitments, love for the church, knowledge of the Constitution and the respect of their peers. All of these are the normal criteria applied to selection of qualified candidates.

There is another dimension of diversity as everybody knows, which is usually discussed in closed chambers and private caucuses in more hushed terms. Surely this diversity has a greater impact on the outcomes of the commission’s work than just about anything else. Call it what you will — theological difference, diversity in point of view. It has to do with differing levels of spiritual experience, of understanding the Bible, of what we label liberal/conservative, and other words less polite. It takes in a person’s relative rigidity and openness, his/her pride and humility, meekness, teachableness, self-confidence, certainty, doubt and all the rest. Call it differences on the major controversial issues that course through our denomination today, especially sexuality and ordination standards. Call it whatever you want. It is the hot button. It is the one everybody thinks of when new members are elected. It has to do with the personal agenda each commission member brings to the table. These are the very same issues behind the major cases coming before each commission.

I’d like to reflect on this reality.

Let’s say it up front: no one participates in judicial process without personal agenda. Neutrality in matters of ultimate value and conviction does not exist. The courts of the church know this. The only thing that matters when one is selected to serve on a judicial commission is whether you will uphold, and apply truthfully and fairly, the Constitution. And only the General Assembly, through the vote of presbyteries, has power to amend our Constitution. Even “authoritative interpretations” must be established on sound, constitutional foundations.

Every time the judicial commission meets, a complex set of forces goes to work. Some forces are internal, and some are external, as we recognized above. Some can be managed and controlled, others cannot. Idealism aside, we have to be realistic about these shaping forces.

Without discussing any particular case (though any simple research can fill in that lacuna) let me describe a little of what happened during the three periods of transition I experienced as a member of the commission.

The very first case the PJC dealt with during my first two-year cycle was one of the more volatile cases of recent history. Because of the issues involved, and its importance for the larger church, the climate was pretty tense. We all knew pretty much before we got into our meetings where others likely stood on the key matters.

To say that the commission was divided is an understatement. Concurring and dissenting opinions reflected that. The dynamic was adversarial. Starting out in this manner from our first session, that dynamic colored the next two years. There was the usual thrust and parry, jockeying for position, retreat and advance, choosing what issues you were willing to die for. The style had been set up from the beginning, and really didn’t change. The second two-year cycle pretty much repeated the same scenario.

Then, something happened that broke this pattern for the third two-year cycle. If anything, this group was potentially more diverse and conflicted than any of those before. I think others on the commission will bear this out. This class had more nominees challenged at the time of their election than in other recent years, and we appeared to be headed for war. But, surely by God’s grace, our first session had an unusual and unseasonably light agenda. Only one case, one hearing came before us, and this on relatively non-controversial matters.

We were able to spend much more time in getting oriented and familiar with the terrain, with how the process worked and with the rules of the game. We were able to spend more time getting acquainted. As a consequence, a different dynamic emerged within this commission. We were more relaxed. We were able to get to know each other, to inquire into each other’s work, interests, families and all the rest. You might just say we were able to bond. Oh, we still had our differences! There was no ignoring of that fact. And no one was of a mind to compromise key convictions. But the mood was different, certainly more relaxed.

In that climate, there was perhaps more listening, or at least listening with a bit more openness. To some notable degree, we had become friends. Friends can have vast and profound differences. They also have something else that they would rather not sacrifice in conflict. Call it “relationship.” We were beginning to engage one another as people, not just advocates of differing agendas.

When we did next meet, this time to deal with some of the most pivotal and volatile cases yet to come before any commission, what had already happened had a strange and wonderful impact on how we did our work. Adversaries often lack respect for one another (although exceptions can be found). Friends, those who have achieved some personal encounter, as different as they may be, are motivated by respect and honor.

It is unrealistic to expect that a similar slow start will allow every new class to enjoy what we experienced. Judicial commissions have little control over their case calendar, when an appeal may come before them, the number of cases they may face or how pivotal or controversial these cases may be. Commissioners are as busy as the rest of us. Each commissioner spends upwards of 30 days a year in reading cases and in meetings of the commission, and it is probably unrealistic to expect them to take added time off for a similar scenario of bonding before they begin their work. But that experience, which I look back on with thanks to God, has left me pondering, and asking some questions.

It has always been a matter of annoyance to me that civil judicial process is adversarial. The language and forms of trial, of examining and cross-questioning witnesses are structured to be adversarial. The press, public opinion and all the hoopla surrounding highly visible cases add to the gladiatorial atmosphere. We justify it because we believe that’s the way to peel away what’s false and irrelevant, and get to truth. But individual participants in this exercise are dehumanized, since “truth” is the object, not people. Perhaps, not even God himself.

This is not the intended ethos of ecclesiastical judicial process. The words of the preface to the Rules of Discipline (D-1.0101 and D-1.0102) do an excellent job of capturing the spirit and mind of Scripture. Their focus is on the honor of God and the good of people. They recognize the harsh reality of brokenness, and of the myriad ways God is dishonored. Their intent is to foster restoration, economy, speed, justice, and to provide safeguards and due process. They recognize the power vested in the church, and are fully cognizant of how that power is easily abused and misused.

The goal is that this power be used, therefore, to build up not destroy, redeem not punish, exercise mercy not wrath, in order that the Great Ends of the Church may be achieved, and that all of us people (not objects of litigation), admittedly still children, may one day be presented faultless in Christ.

The actions of the just-completed General Assembly have added greatly to the already confused landscape. The new Permanent Judicial Commission will likely be facing a much busier agenda. It looks to be much more volatile as well. Commission members, especially new members, will likely have been counseled on how to proceed, and on suitable alignments. This counsel is hard to ignore, however one may seek to rise above it. Few sincere judicial commissioners openly intend to subvert the Constitution. They differ vastly on how to read it. Each one also brings a personal history, and a memory. These shape values. It is foolish to pretend that none is without an agenda, personal or party. All would agree on the need to rise above these agenda. What will it take for the Spirit of God to prevail, to guide this commission’s decisions? What will be the rock that splits the church? What might be the angel that brings new light? How can this commission serve to advance the peace, unity and purity of Christ’s church, rather than erode them?

We in the larger church have to remember the limits of the commission’s powers. They do not change, amend, modify nor rewrite Constitution and church law. Their power is limited, circumscribed, confined only to those specific issues before them to be dealt with in whatever case has been appealed to them. As much as they may wish to, they do not have the authority to speak beyond that.

We also have to remember that almost without exception, parties to cases are already polarized into adversarial camps before the case ever arrives before this commission. This makes the task of keeping to the spirit and intent of the preface to the Rules of Discipline all the more difficult. Add to that the very limited time this commission has actually to hear a party’s arguments, that they are confined to the record on appeal as it is before them, and that by rule new evidence cannot be introduced, and you begin to see how limited are a commission’s powers.

Nevertheless, my experience these last two years has, for the reasons I’ve cited above, been a profoundly gratifying moment. We were able to experience the work of God in our midst in a remarkable way. We experienced something of the depth and wonder of Christ’s body, the Church of Jesus Christ. I would wish for this new commission a similar transfiguring moment. And I shall be praying that they have a similar, even finer epiphany.

If the primary calling of the church is to be intercessors (and it surely is), and if prayer in the name of Jesus Christ is one thing Christians are able to do that no one else can, then I urge that “all prayer and supplication be made” for these in this arena of particular authority. Pray that God’s Holy Spirit may transcend their humanity, their culture, their diversity, and bring them together into the mind of Christ. May they know such a moment as did Peter, James and John, when Christ was transfigured before them in the presence of Moses and Elijah. My colleagues and I on this past commission are in debt to those who faithfully upheld us in prayer. May God recompense each one.

Posted Oct. 11, 2001.

David Bridgman is associate director, Presbyterian Frontier Fellowship.