A Tribute to Judge Ferguson

Posted by Matthew Liebman, ALDF Staff Attorney on August 18, 2008

Judge Ferguson
I have very sad news to share from the federal judiciary: we recently lost one of the most compassionate and just judges to ever grace the bench.  The Honorable Warren J. Ferguson of the Court of Appeals for the Ninth Circuit passed away in late June at the age of 87.  

I had the honor of clerking for Judge Ferguson during the 2006-2007 term, right before I started at ALDF.  Although many clerks’ relationships with their judges are exceedingly formal, Judge Ferguson (or just “Judge” as he insisted we call him) treated everyone in his chambers as if we were not only colleagues, but family.  We had lunch with Judge on a daily basis, discussing everything from politics to college football to stories of Judge’s childhood in the tiny town of Eureka, Nevada, including stories about his childhood companions Minnie (a cat) and Jiggs (a dog).  

Judge Ferguson’s warmth and compassion were not restricted to those in his immediate presence.  His opinions consistently and proudly championed the rights of oppressed groups, including the poor and working class, the disabled, racial and religious minorities, women, immigrants, Vietnam war veterans, children, indigent criminal defendants, and threatened wildlife.  Although Judge Ferguson’s obituaries highlighted his monumental decisions in cases involving the National Basketball Association and Betamax, I suspect he took equal, if not greater, pride in the “smaller” cases that had life-altering effects for overlooked members of society: the amnesty cases, the child custody cases, the disability rights cases.

These cases defined Judge Ferguson as a jurist, but also as a person.  His philosophy on judging was fairly straightforward: judges should do justice, not merely administer law as dispassionate bureaucrats.  He was what animal rights lawyer Steven Wise refers to as a “Precedent (Principles) Judge.”  Such judges “believe that precedents lay down not narrow rules, but broad principles, and that it is these broad principles, and not the narrow rules, that they should follow and apply directly to the facts of a case.”  STEVEN M. WISE, RATTLING THE CAGE: TOWARD LEGAL RIGHTS FOR ANIMALS 97 (2000).  Judge Ferguson never lost sight of the basic values that are supposed to animate the law:  principles of equality, fairness, due process, and, yes, compassion.  

This is the exact type of judge that we in the animal law movement need.  We need judges who will consider our treatment of animals in light of these guiding principles, judges who are willing to ask fundamental questions about the injustice of denying the inherent worth of animals and the inequality in treating chimpanzees or dolphins differently than we do humans with identical capacities.  Indeed, as Wise observes, unquestioned fidelity to the letter of the law at the expense of its spirit “blindly perpetuates the most pernicious and invidious biases of which we humans are capable.”  Id. at 116.  

Of course, I can’t speak for Judge Ferguson on any of these issues, and although he often asked me about animal rights issues, I wouldn’t presume to know his stance on any of the pressing questions in animal law.  But I can say that he was the kind of judge who would have at least been open to these types of questions of fairness, equality, and justice as they relate to other animals.  

So, as if the sadness of losing Judge Ferguson as a friend and mentor weren’t crushing enough on a personal level, losing him as a judge will be just as devastating to all those oppressed groups whose rights he upheld.  Judge Ferguson will be sorely missed, but his legacy will continue to inspire.

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