• James L. Oakes
    October 17,2007
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    James L. Oakes of Brattleboro was the kind of scholarly and humane judge who gives liberal activism on behalf of constitutional principles a good name.

    Oakes, who died on Saturday, was 83 years old. President Nixon appointed him to U.S. District Court in Vermont in 1970 and then named him to the U.S. Court of Appeals in 1971. On the Appeals Court he became known for numerous important rulings, including, famously, a dissent in the case of the Pentagon Papers. Oakes did not agree with the majority of the Appeals Court who supported the right of the Nixon administration to bar publication of the Pentagon Papers by The New York Times. The Supreme Court agreed with Oakes, and The Times was victorious.

    Oakes was a stout defender of press freedom, arguing that the press had a role, not just as a check on the malfeasance of government, but as a "powerful vehicle for the effective functioning of a government that by definition is democratic in nature."

    Oakes believed judges had a duty to defend our fundamental rights. In an article he wrote for The Columbia Law Review, he said he was not impressed by politicians who condemned such rulings as judicial activism. History sometimes demands action from judges, he said, "when the rest of our political structure bogs down."

    In the 1960s Oakes was a Republican state senator and then attorney general, and in the latter role he showed he was willing to stand up against racism. It happened during the notorious Irasburg Affair.

    Someone had fired a gun into the home of a black minister and his family in Irasburg, and local investigators managed not to find the culprit, instead naming the minister on a trumped-up charge of adultery. Following the shooting, Oakes had immediately gone to the minister's house to show support. When he sent his deputy attorney general, Frank Mahady, to investigate the shooting, the shooter was found within a day.

    Oakes' political career ended in 1968 when Deane Davis defeated him in the Republican primary for governor. Oakes was aligned with the liberal wing of the Republican Party that included George Aiken, Ernest Gibson, and Oakes' law partner, Robert Gannett, who became a longtime senator from Windham County. The attorney general who followed him into office, James Jeffords, was part of that tradition, as well.

    That tradition encompassed respect for the environment, and in a case that came before the Appeals Court, Oakes wrote a decision upholding Vermont's landmark land-use law, Act 250. Developers at Stratton had challenged the right of the state to limit their use of the land, and they were supported by conservatives who argued that the "taking" of property rights by government was unconstitutional. Oakes' ruling was a strong defense of the government's power to balance property rights with other interests, such as environmental protection.

    Oakes was revered as a judge and loved as a human being. Supreme Court Justice Ruth Bader Ginsburg said Oakes was the "model of what a great judge should be — learned in the law, but ever mindful of the people law exists to service."

    Sen. Patrick Leahy said, "He would have been extremely well-qualified to be on the Supreme Court."

    Oakes has now passed on. Lawmakers and judges must now ensure that the constitutional principles he spent his life defending survive him.
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