Top judge tells all
Geoff Metcalf interviews Alan Fields, chief justice of Marshall Islands

By Geoff Metcalf

Although few areas of life are more inscrutable than the mind of a high-court judge, WND's Geoff Metcalf pierces the veil somewhat in this interview with Alan Fields, chief justice of the Supreme Court of the Marshall Islands.

Prior to his appointment in the Marshall Islands, Chief Justice Fields served as a judge in California municipal, superior and appellate courts. When court is not in session, Fields lives in Sacramento, California.

Question: It is a pleasure to be able to speak with the chief justice of the Supreme Court ... of the Marshall Islands. First off, I have to ask you: How the heck does a retired judge from California end up being the chief justice of the supreme court of a foreign country?

Answer: Quite simply, I was reading an article in a legal newspaper. They were looking for a "culturally sensitive judge" in the Marshall Islands. I had just come off of having two juries out deliberating in Sacramento and was beginning to select the third one, and I thought there must be life after retirement from the superior court. So I responded and I sent my application and resume out to the Marshall Islands -- and then looked on the map to find out where the Marshall Islands were.

Q: That is not unlike when I came to Sacramento in 1981. I wasn't sure where it was and I thought San Francisco was the capital of California.

A: It was rather interesting. There were over 400 applicants, including one plumber from Toronto, Canada, who thought he might qualify. But I got the job. I lived there for a year on the capital island of Marjaro and sat on the high court, which is the trial court. Then six months later, I went back to redo the constitution -- there was a constitutional convention. We were trying to fix the mistakes Laurence Tribe made when he drafted it.

Q: Oh, the infamous Laurence Tribe from Harvard University? By the way, I guess this Bush-Cheney administration means Larry won't be getting an appointment to the U.S. Supreme Court?

A: Hopefully. Then I went back in April of 1996 and I was the only one considered for chief justice, and I've been there ever since.

Q: Where are the Marshall Islands?

A: They are the first independent island nation in Micronesia. When you leave Honolulu you hit the Marshall Islands next before you go through the Federated States of Micronesia.

Q: How many islands are there?

A: There are over twelve hundred islands. Most of them are uninhabited. The population is about 52,000. There are over 10,000 more Marshall Islanders, but they are spread all over -- most of them in the United States.

Q: What kind of economy do they have?

A: Very little. Most of their money comes from the United States in the way of compact payments. We took them over in '45 when we liberated them from the Japanese. We controlled them under a trusteeship through the United Nations until 1986 when they became completely independent.

Q: I'm surprised they'd even want to be independent.

A: They hadn't been independent for over a hundred years. The Spanish claimed them first, but did nothing. The Germans claimed them and used the coconut plantations and then the Japanese took them over in 1914 and controlled them until the end of the war.

Q: Most of these islands are just tiny little atolls spread out all over, aren't they?

A: Well, some of them aren't so tiny. The capital of Marjaro is about 30 miles long. It may be narrow.

Q: The size of Rhode Island?

A: Well, it's probably a little narrower than Rhode Island. About a third of the island you can drive down the road and on one side is the ocean and the other side of the road is the lagoon.

Q: I don't mean to sound discourteous, but what kind of work is there for a supreme court to do on an island so small? What does the island subsist on, besides the money the United States pays them to shoot stuff into their lagoon? Is it fishing and some agriculture?

A: There is no agriculture. It is all coral sand and not a heck of a lot grows in the coral, except coconut trees, bananas and papayas.

Q: Were they impacted by that recent treaty Clinton signed to protect coral reefs?

A: No. They have not signed any treaty protecting coral reefs.

Q: So you spent a year down there. How did you end up getting promoted and becoming the chief justice of the Supreme Court? And by the way, do you get a robe with the gold stripes on it like Rehnquist?

A: No, but I'm going to get the stripes. We had black robes when I went out there in '93, but I talked the chief justice of the trial court and the president of the country into switching to blue robes, because I figured we should have blue robes to match the Pacific instead of black robes out of respect for some dead English king who died centuries ago.

Q: And it would also match the flag of the Marshall Islands.

A: The Marshall Islands has a dark blue flag with an orange and a white stripe in it and big white sunburst up in the corner.

Q: So, you're getting blue robes when you go back and you're getting stripes on it?

A: I think I'll take the stripes with me when I go back. I figure if it's good enough for Rehnquist, it's good enough for me.

Q: So how did you get the promotion to chief justice of the Supreme Court?

A: I lived there for a year in '93-'94 and then went back until the end of '94 to be the legal adviser to the constitutional convention. And then in February of '96, I saw in their weekly newspaper -- which I still subscribed to -- that the then-chief justice who was a very well-known and respected attorney in Honolulu had resigned. So I sent my inquiry to the Marshallese judge and said, if you're still interested in an American and it's still part-time, I'd be interested. So in April of '96 I got the appointment to the chief justice of the Supreme Court. I'm the only one on the court who gets paid. I'm the only one on there. When I have a session, I have to go to the cabinet and the president and ask them to appoint two other judges to sit with me.

Q: Where do they come from?

A: I've had them from all over, from Halo and Saipan and two Americans judges who sit on the nuclear-claims tribunal. But the last few times, I've had the senior judge from the Ninth Circuit, Alfred Ted Goodwin, and Sam King from Honolulu.

Q: Sorry, but I don't think good things about the Ninth Circuit.

A: Well, I asked that question of Ted Goodwin and he said none of his cases that he wrote have been overturned by the Supreme Court. But he had some problems with some of the other people.

Q: I often refer to the Ninth Circuit as "The most overturned court in the land."

A: Well it is. They have a rating of close to 90 percent. So if you lose there, you know you can get to the Supreme Court and win.

Q: I know there have been discussions about cutting up the Ninth Circuit into at least two courts. Is that going to resurface?

A: I suspect that it will until they do. It's going to resurface until they do -- as long as they have the judges that they do have on the Ninth Circuit that are constantly getting reheard.

Q: You don't have that problem on the Marshall Islands. How often do you have session?

A: Probably about three or four times at most during the year.

Q: What kind of stuff would you address?

A: Last year we probably had the two most important cases heard out there. It was a fight between the president and the then-speaker of their parliament over the powers of each. The government had come to a complete halt. They had no budget. Every time they tried to transact some business ...

Q: ... Was any of that a function of Harvard law professor Laurence Tribe having crafted their Constitution?

A: No, not on that one. The president would get up and walk out and there wouldn't be a quorum to transact business -- he claimed the speaker of the parliament was making erroneous rulings. We had our Supreme Court session and ruled in favor of the speaker of the parliament on two cases on the power of their government. As a result, two weeks later, they had an election and most of the president's cabinet were defeated. Then, in January of this year, the new president was elected -- the first commoner in the island -- he is president and had been the speaker of the parliament in whose favor we had ruled in that previous suit.

Q: I have to ask you this next question given your stature. We have just been through a civics lesson with more facts in evidence than most Americans wanted to be exposed to. But the ruling of the United States Supreme Court that finally concluded the never-ending-story of election 2000 -- the last decision, which depending on what side of the political spectrum you are on was either a 7-2 or a 5-4 decision -- raises questions. I had kind of mixed feelings about that. I thought it could have been brilliant on the part of Rehnquist to do what he did and leave the door cracked open, but no time to do anything about it. But I also thought it was kind of sleazy and maybe a little disingenuous by not having any closure or finality to it. What was your impression of what the Supreme Court did?

A: My impression was the same as yours. I felt they could have very easily decided that the first time up -- and a very definite decision come out -- and we could have stopped all this further practice of witchcraft in which we saw them holding up magnifying glasses to the ballots, trying to figure out the intent that somebody had.

Q: One of the Justices said one of the consequences is that people can't trust judges any more. Despite the misreading of that statement, he wasn't speaking about his fellow justices, but pretty clearly about the renegade Florida Supreme Court who were legislating from the bench.

A: That's correct. That's correct. I thought that the U.S. Supreme Court should have come down harder and said very definitely, "Hey, what they are doing is changing the rules after the election. They can't do that." And they could have very easily made that decision.

Q: I think I know the answer to this question, but you didn't see that last decision as a partisan decision did you?

A: No. No. I have served on all levels of the court in Sacramento, California -- the municipal, the superior court, and sat on appellate court. And now on a supreme court. I have the ultimate confidence in the Supreme Court because they can go nowhere but other than make their decisions on what they feel is correct.

Q: A lot of folks were saying they probably wanted to come up with a 9-0 decision, but they just couldn't manufacture a fiction that they could wrap around that. So it was probably going to be 7-2 because Bader Ginsberg, for sure, was going to go along partisan lines. Doesn't that sort of discount the perception they can judge the law based on the law and their partisan or philosophic impressions are not going to impact their decision?

A: I would prefer to think it wasn't a political decision but that they were viewing the law differently. But, of course, they view it differently because of their political differences.

Q: How much does that impact on a judge?

A: Political decisions?

Q: Yeah.

A: On the lower levels it has a big impact, but on the Supreme Court it should not, because if they make a decision politically there is no way that they can advance their careers at that point. They are already at the top.

Q: Laurence Tribe, notwithstanding the fact that he is a liberal Harvard law professor, last year had an epiphany that kind of shocked me. I've been saying for over 20 years that in the Constitution when it talks about "we the people" it means "WE the people." Last year, as a prelude to the controversial Emerson case that is still kicking around, he said he had been wrong. He acknowledged that the Second Amendment speaks to an individual right and not a "collective right" enjoyed just by militias. I give him credit for acknowledging that. Do members of the Supreme Court go through that same kind of philosophical examination? What happens to a judge when he gets to the Supreme Court?

A: Hopefully they are looking at the law, and what they feel the law says, and they are making their interpretation of what the law is -- uninfluenced by anything else. It's not always the case, but it's what should be.

Q: How often does that happen?

A: Oh, I couldn't begin to tell you. I suspect it should not happen at the U.S. Supreme Court. At the state courts, yes it would.

Q: As the chief justice of the Supreme Court of the Marshall Islands, would it be possible for you to legislate from the bench and get away with it?

A: Yes.

Q: How?

A: I could make any decision I want, because there is no appeal to my decisions out there. It would be a dishonest opinion, so I wouldn't do it -- but yes, it is possible. I'm sitting there, being a resident of Sacramento County, and I could make a decision out there and represent one third of their government and nobody can appeal my decisions. I can overrule whatever the president and/or the parliament say and there is no appeal.

Q: What kind of oversight is there?

A: Impeachment. They could impeach me on certain grounds.

Q: Allegedly in this country we have three branches of government. They are supposed to be co-equal. They each have their own job functions, although in the last few decades they have been poaching on one another. In the Marshall Islands is it the same way? Are the judiciary and parliament co-equal?

A: Yes. And when I was sworn in for another six-year term in May of this year, the president came to the courthouse to swear me in and he told the nation that they are not to try to interfere with the independent judiciary.

Q: How many subordinate courts are there?

A: There are community courts, which are non-lawyers on the various islands, the outer islands.

Q: How are they organized? Do they have municipalities? Are there counties? Or are they still tribal?

A: They have atolls and the atolls have their own courts if there are enough people living on them.

Q: What I'm trying to get at is what kind of organizational structure is there?

A: The community courts are part-time and they only get paid two dollars an hour when they work. And they may not even work for a month or so but, above that, they have the district courts which try traffic cases and those would only be on the big island.

Q: What, if any, strategic significance do the Marshall Islands hold for the United States?

A: The Marshall Islands are very strategic in that the Kwodulain atoll or the Kwodulain lagoon is where we shoot our missiles from Vandenberg Air Force Base in California.

Q: And that's where they get the bulk of their money?

A: Well, that's part of it. The landowners there get paid for the use of that lagoon.

Q: ... and all the fish they can pick up when we're done shooting, right?

A: Well, probably. But that is the main purpose why the army is there. And one of the islands in the Kwodulain lagoon is where we are trying to shoot the interballistic missiles down by shooting up the interceptor missiles. We've missed twice, but we're still trying.

Q: You had mentioned something to me that I initially had missed entirely. In the recent 7-2 U.S. Supreme Court ruling, when Justice Ginsberg dissented, you noted there was something significant about the way she dissented. What was that about?

A: I picked it up on a TV program when they were interviewing a former clerk for Scalia, and she pointed out there never, to her knowledge, has been somebody who dissented by just saying "I dissent." They traditionally always say, "I respectfully dissent" -- whether they respectfully dissent or not. But they always use the word "respectfully," and she did not. Justice Ginsberg said, "I dissent" and to this former clerk, it was a big deal to her.

Q: So the absence of the word respectfully was more than just form -- there was some significant substance to the omission?

A: It appears to be that way.

Q: Back in August, I did a story for WorldNetDaily and I'm still getting grief about it. I'm curious if you heard anything about it. I had heard this from a number of different sources, and this was before it was eventually acknowledged the president was going to Vietnam. There were two parts to the story: 1) that the President was going to go to Vietnam after the election and before he leaves office and 2) that there had been instructions from somewhere that naval regulations were to be changed to accommodate a requirement the Vietnamese have that no flag fly equal or superior to theirs.

I had the information on real good authority, but the guys wanted to remain anonymous because they were fearful of recriminations, et cetera. Subsequently it was acknowledged that there were "discussions" about the flag thing, but we said no, and yeah -- the president did go to Vietnam but he wasn't on a Navy ship. Did you hear anything of that flag flap down in your neck of the woods?

A: Yes. And it was confirmed to me by two sources. High-ranking Navy officials on both coasts, both sides of the United States ... that there were discussions and these discussions originated not with the Navy, but from the Secretary of Defense' office.

Q: So the discussions did take place? I wasn't making it up out of whole cloth?

A: Very definitely. And also it was confirmed that the president did go to Vietnam.

Q: Critics conveniently forget to mention that half of the story.

A: It did happen and there were discussions. I did eventually see your stories from WorldNetDaily and I suspect without your bringing this forward, it would have quietly been done.

Q: I've been getting two flavors of reaction to the series of stories. First: "Thanks, great job, atta-boy, you saved us from an awkward embarrassment." And on the other side: "Shame on you, how dare you, you are a (expletive deleted) hack and are making this up out of whole cloth to hurt the administration." You have heard it from both coasts that it did happen as reported?

A: I can guarantee you that it did happen. I would stake my life on it.

Q: Well, Mr. Chief Justice, I'm going to write that down.

By the way, back to the recent U.S. Supreme Court decision, folks have asked if their having taken the case was a function of the basic controversy between the popular and electoral votes?

A: I think that the U.S. Supreme Court could only consider the Electoral College. They cannot consider the popular vote because our Constitution provides for the Electoral College system. I think they had to do something because the Florida Supreme Court was so wrong in their decision. Again, they were practicing witchcraft trying to tell those people looking at those ballots with huge magnifying glasses, holding them up to the light, trying to discern what the intent of somebody was who probably had no intent at all to do anything.

Q: One of the things that surprised me was, I was shocked that after the Florida Supreme Court made their late Friday afternoon ruling, that Justice Scalia came forward and that the U.S. Supreme court did anything so fast. I mean the Florida Supremes sandbagged on that decision out of Florida until the end of the day on that Friday -- I'm sure on the assumption that the U.S. Supremes aren't going to do Jack about it until maybe Monday. And the fact that they responded so quickly, I thought, was just incredible. Given the fact that they did respond so promptly, and put the brakes on the Florida recount, I guess I was disappointed and surprised that their final decision was not more definitive.

A: I was too. I thought it should have been more definite. And they could have done it at the very beginning when they first heard the case, and we would not have been tormented as much as we had been during those last few days.

Q: We know the damage this episode has done to the country and the parties. Has this helped or hurt the judiciary? I mean, obviously in Florida, they are out of luck.

A: I don't think that there is any long-term effect on the decision from the U.S. Supreme Court. We've had 5-4 decisions throughout the history of the Supreme Court. This will long be forgotten -- except for the media keeping it alive for as long as they can.

Q: And academia will be writing textbooks about it for decades to come. We have heard from folks who have questioned how (as recently happened in California) a two-thirds requirement for raising taxes could be changed by a simple majority vote on an initiative. It doesn't sound kosher?

A: No, it doesn't to me either, if it says it's two thirds. I think you are referring to Proposition 13 that says it requires two thirds vote to raise any taxes.

Q: There has been a boutique industry created around ways to circumvent the intent of Prop 13.

A: They say it's not taxes -- it's a special assessment ...

Q: Or a fee ... a rose by any other name. You mentioned that in the Marshall Islands the way they select a president is kind of interesting. First off, your Constitution is only about 10 years old, right?

A: Actually it was enacted in 1979 and looking forward to their complete independence in 1986, so it really took effect in 1986. They had to get the approval of the U.S. Congress as well as the approval of people in the Marshall Islands.

Q: How do they select a president in the Marshall Islands?

A: They have a unique system. If you have land rights on different islands -- and you get land rights coming down from your mother, not your father -- if you have land rights, you can decide which island or which atoll you are going to vote from. And each atoll or combination of atolls have different numbers of senators they elect. Like in Marjaro, the capital, they have the right to select five senators and in Kwodulain they have three because that's where most of the population is. And the other islands are split up. There are a total of 33 senators elected. Then, they meet in January and they, the 33 senators, select the president from their membership.

Q: Like the way some city councils select a mayor from their membership?

A: Yeah. It's a parliamentary system, patterned more after the English system. Then the President selects up to 10 or 11 cabinet members to run the country ...

Q: ... depending on who voted for him.

A: Oh, yes. Yes. Then the cabinet and the president run the country in between any sessions of their parliament.

Q: OK, the senators get elected. The senators choose a President. The president chooses his cabinet -- all from the same pool of 33 senators.

A: Yes.

Q: And once they have this additional responsibility, do they still function as a senator for their district? Or is someone else elected?

A: No, they are still senators from their districts and they have to be elected every four years.

Q: I want to ask you this question because I just got called for jury duty again. Last time they said thanks, but no thanks. I was excused because I believe in jury nullification. I believe jurors' rights include the right to judge not only the facts in evidence, but also the law. And if a judge gives me instructions contrary to that, I have a problem. I'm between the rock and the hard place. As a judge, what is your view of someone who tells you they will not follow your instructions if they believe a law wrong?

A: I would be very polite and say, "You are excused, Mr. Metcalf."

Q: Why?

A: Because your duty as a juror is to judge the facts. You determine the facts. But you must follow the law that the judge gives you.

Q: What if the law is in error?

A: Then it is up to the legislature to correct it, not you.

Q: But that is part of a juror's rights.

A: Not in California. You have to follow the law that is given to you. You are supposed to -- many times the jurors don't. But they don't tell the judge in advance that that is their feeling.

Q: So when I tell them I intend to stick to my guns on this, they can't compel me to vote other than my conscience, they are going to say, "Thanks, good-bye, good luck and get out"?

A: That's right. Because during the jury deliberations you can do what you want. Your duty is to judge the facts in the case. And supposedly you don't know the law.

Q: Wait a minute. You say "in California." I seem to recall a little case that was on all the TV stations involving O.J. Simpson and it doesn't seem that jury went by the facts in evidence?

A: I would agree entirely. But those jurors did not tell the judge they were not going to follow the law.

Q: So, if I am honest, they will say "Don't let the door hit you in the butt on the way out."?

A: I'd be more polite and say, "See you later."