IDEAS: You once did a forum on “Measure for Measure,” which is all about the tension between the letter and the spirit of the law. In the absence of a duke, there’s a surrogate who starts enforcing laws that have never been enforced but that are on the books—like the death penalty for premarital sex.
KELLY: Right. [laughs] In that one, we were looking at what it means to be a good judge. A judge has to balance the interests of strict enforcement of the law with equity.
Since the Reagan administration, a complex set of guidelines and mandatory minimums have been imposed on judges on the federal bench, where they had certain restrictions depending on the circumstances of the crime, the history of the criminal defendant, the circumstances, and lots of other factors. So they were constrained in making sentencing determinations, and a lot of judges—including Nancy Gertner, when she was on the bench—thought that this resulted in absurd sentences, and that their power as a judge should have permitted them to have flexibility. Those sentencing guidelines were eventually found to be unconstitutional for those very reasons.
IDEAS: You’ve also done “The Merchant of Venice.” Where do you fall in the great Shylock debate? Most people view the character as a villain, or at least an anti-Semitic caricature, demanding a literal pound of flesh for an unpaid loan. But there are a few people who say that as a despised outsider he has to rely on the protection of the law—that judicial discretion opens the door to discrimination.
KELLY: I actually think Shylock had a case. I think there are a lot of bad things that happen to Shylock during that play and during the trial itself. The first and best example is that the judge [Portia] is not a judge at all but the lover of the guy who is responsible for Shylock loaning the money to Antonio. [She disguises herself.]...Portia was clearly biased
She has a very beautiful speech about the principles of mercy being used in the courtroom, yet what happens to Shylock is that he not only loses his case, but he is forced to pay half of all of his goods to the state, the other half to Antonio, and to convert to Christianity. The case starts out as a civil case by Shylock against Antonio and ends up as a criminal prosecution of Shylock for the attempted murder of Antonio. Obviously he had no due process.
IDEAS: When considering equity, I guess prosecutorial discretion comes into play.
KELLY: One of our regular participants has been [Boston attorney] Harvey Silverglate. He was our original Shylock in “Merchant of Venice” and has been involved in many of the plays. He wrote a book called “Three Felonies a Day,” and the principal thesis of that book is that there are enough laws on the books today where the federal government can indict any person that it wants, and there is an arbitrariness to the way in which the federal government makes decisions about who they are going to prosecute.
IDEAS: In your actual legal practice, when do you find yourself thinking about Shakespeare the most?
KELLY: Typically it’s dealing with clients who can’t make a decision as to whether they want to move forward on a case or not. We have a lot of Hamlets who come into our office.
Christopher Shea is a writer based in Washington, D.C., and a former Ideas columnist.