Trial by Elimination

One of the fictions that underlies civilized society is that the jurist is in some sense above mortal men. This is a convenient fiction, for without it there could be no law. Obviously, many judges in the past have been shown wrong; few of their contemporaries, however, are wise enough to say they are.

The Government last week accused Federal Judge Luther W. Youngdahl of personal prejudice in favor of Owen Lattimore, and asked the jurist to disqualify himself from the bench during Lattimore's forthcoming trial on charges of perjury. In the past such action has come only after evidences of exceptionally flagrant abuse, yet the Government's case against Youngdalh is a flimsy one. Of Youngdahl has a bias, it apparently did not affect his judgment, for in dismissing these charges he was upheld by an overwhelming 8 to 1 majority in the Court of Appeals. The two counts this court reinstated were so minor that the Government decided to drop its case rather than press for an indictment. The Court is now being asked to reconsider essentially the same counts that Youngdahl threw out last year, changed only in wording.

Youngdahl has never shown that he is nor qualified to hear the Lattimore case. He dismissed than indictment last year because he considered the counts too vague for prosecution, not for any judgment of Lattimore's innocence or guilt. Youngdahl himself is a man with an impeccable record of past public service; regardless of his personal feelings about Lattimore's guilt, it is hardly likely that he would let them influence the wholly legal decision of whether or not the counts against the Far East expert are concrete.

If the Government succeeds in preventing Youngdahl from judging the new counts or appeals the case on charges of bias, it will in effect be deciding the issue himself. For a future court, making the same decision, might lay itself open to similar accusations. Indeed, if carried to its logical extreme, this lack of confidence in the courts could undermine the whole judicial system.