The ABA Journal reports here that "[m]ore than half of Americans are angry and disappointed with the nation'’s judiciary."According to the survey, more than half (56%) of those who responded agree that "Judicial activism ... has reached a crisis."
It looks like we have our work cut out for us.
11 comments:
Right! Judges should always decide based on what WND tells them is "the law" and should never rule in favor of unpopular causes. Decisions should be made on the basis of a swimsuit competition.
You know, for someone who obviously has no use for either me or this blog, you sure spend a lot of time here. Since you are apparently from Maryland, you don't practice in front of me and obviously don't know me either professionally or personally.
I was in politics a long time in another life and as a result I have a pretty thick skin so while thoughtful comments or constructive criticism are always preferred, I don't mind your mindless venting if that is what gets you off, just don't expect any changes to this blog because of it.
Having said that, I do sort of like your idea of a swimsuit competition.
Obviously you don’t have to change your blog, but I seriously wonder why someone who fancies himself a “good” judge (like most judges) your legal analysis reads like a political position paper. (Though now that I find out that you were in politics, I understand a bit better.)
Unless you think that your judicial decision-making is based on a popularity contest of the relative views (expressed through the media, I imagine) what people think of judicial decisions, is, quite frankly, irrelevant. If they don’t like them, they can change the constitution, or even change our entire form of democratic government – perhaps eliminating elections, legislatures, and everything else. But, until such time, most judges (I thought) were deliberately ignorant about what the masses thought about their interpretation of statutes or the constitution. You, seem to be quoting right-wing rags (which, I admit are just as bad as left-wing rags) and surveys taken of people who, rather than change the mode of decision-making via the democratic process, answered a telephone survey-taker.
Virtually every appeal will involve difficult choices in the way the constitution or a statute is interpreted (with the exception of some criminal appeals). You seem to be arguing that the proper way to interpret the constitution is based on its “text” (which can mean just about whatever people claim it does); its “history” (about the same), and now it seems public opinion gets to have a say in the correct way to interpret a document. People like to see atheist kids lead in saying “under god”? Then the words “under god” are not religious (because there are so few atheist). People think that criminals “get off” on technicalities? Construe the 4th and 5th amendments to never apply in high-profile cases. People think that cops have a “hard time” getting confessions, then declare the judicial power to be limited so as not to infringe on their power.
The irony about this mode of interpretation is that it is fairly easy to see well-healed people manipulating the process for themselves. While obviously “nobody” wants to see people facing forfeitures of “drug money” or revocation of their parole get expanded “due process” rights, a good PR campaign can make even the most uneducated person an expert in the correct way to interpret the 5th amendment’s takings clause: that property owners must be compensated whenever things don’t go their way. Anything else is, in their words, an abomination of constitutional interpretation. This argument can be cast in terms of “values” and judges can be called “arrogant” or whatever slogans WND is telling people to repeat, but it all comes down to parties trying to influence judges not with their legal arguments (made in briefs) but with dog-and-pony shows and political rhetoric. This form of argument is properly left to the political branches
As to whether I have “use” for you or this blog, I actually have sort of high hopes for it. I was hope to see serious discussion of judicial decision-making and scholarly discussion of, well, anything – or maybe something like the Becker-Posner blog. But maybe this isn’t your idea of a good time.
Random but apropos question: Why do judges reviewing judicial misconduct usually not name the judge subject to investigation? See, e.g., In re Judicial Misconduct. Many respondents in the ABA survey said that judges are unaccountable. When reviewing courts a) hold judicial misconduct proceedings in private and b) refuse to even identify the subjects of colorable complaints, what should the public think?
It's me again, the mindless commentator. If it makes the above poster feel any better, the Judge in question is Manuel L. Real. This is rather public information and has been for a few years (and is mentioned on other blogs). There are various reasons to reveal the name or to not reveal the name. However, since federal judges have life tenure, the logic goes that only Congress has any real power to discipline them (via the impeachment process) and therefore, any disciplinary proceedings would only hurt the system of justice as a whole (especially if the judge is named in public). Likewise (and this applies to state and federal judges) since disciplinary proceedings can be initiated by anyone, seriously embarrassing judges might do more harm than good: especially if the committee determines that they did nothing wrong – and the judge would forever have a dark cloud over him which could make it harder to rule on some cases.
Complicating the matter somewhat is the fact that a lot of disciplinary complaints are really just complaints about legal decisions, which are properly handled via the appellate courts.
But, on the other hand, our society loves mud. We seem to love to condemn people that have been acquitted by courts. We love to condemn even people that have been called before a grand jury (or whose names have been leaked by witnesses to the grand jury). So, why should judges get any more protection.
Complicating the matter somewhat is the fact that a lot of disciplinary complaints are really just complaints about legal decisions...
Let me narrow the issue. I am referring to cases where, as in Real's case, or as in "Chatinygate," where there is at least a colorable claim of judicial misconduct. The procedures re: Chatiny are being conducted in secret. Why? Doesn't the public have an interest in these hearings? The Senate can impeach, but they won't impeach unless prompted by the public. If the public is kept ignorant, how can they demand that their elected officials take against against a misbehaving judge?
In any event, I agree that judges "have [their] work cut out for [them]." I think meaningful sanctions, or at least sunshine, would be a step in the right direction.
The public doesn't really have an interest in those hearings, since there is little that they (or even the disciplinary committee) can do about it.
The litigants obviously have some interest in this, but, to be frank even that interest is somewhat attenuated since any adverse legal determinations can be (and were) appealed. So, if anyone has an interest in seeing that the laws are “fairly” (whatever that means) enforced, it is Congress, and for good reason, they keep their hands off federal judges unless a judge is actually convicted of a crime.
People can obviously write their congressman about issues that concern them, but “write your congressman” is generally considered to be a judicial codeword for “I hate you.” See http://plig.schtuff.com/congressman_call_him
But, whatever the public's view of judges, the poll's question (and results) has nothing to do with Judge Real. Judge's Real's behavior (if it was what the petitioner's claims – after a hearing on the issue the committee determined that it was not worthy of sanction) has little to do the complaint of the non-lawyers who don't understand rulings of appellate courts on issues of law, or feel that the courts did not cause the right people to suffer.
Unfortunately, a lot of this negative imagery of judges is the fault of lawyers themselves. My old firm made a point of accusing judges of all kinds of judicial activism whenever it lost a point. The newspapers (including Worldnetdaily) would reprint our childish rants almost word-for-word without even looking at the merits of the issue that we lost on. Ironically, most of the clients we represented had little or no connection to people that made less than $50,000/year (except maybe because they fired them). The perverse benefit of this is that it is fairly easy to say that a judicial decision is wrong without having read the briefs and without understand the applicable caselaw (or whatever you consider to be binding authority.)
We agree about more than we disagree. First, you are correct that lawyers too often blame "judges" and "the system." It's easier to blame the judge than blame the client's facts. (Clients don't understand that if they're facts suck, they won't win.)
Second, I agree with you that most of the public has no idea what an activist opinion really looks like. I recently tried explaining to some people in the VC comments section that they lacked moral standing to consider something activist, since they didn't have a method by which activism can be defined or at least recognized. I even reproduce my rough matrix for analyzing judicial activism. They didn't care, and they used terminology that sounded more like Breyer than Scalia. (Isn't that grand that people who admire Scalia and hate Breyer couldn't even begin to explain the difference between rules and standards, and indeed, Breyers' critics hate him simply because his critics use different standards than he does.)
Still, many people have suffered harm from judges' ultra vires acts. Unlike a normal controversy, where a hearing is conducted in public, and where interested parties are allowed access and debate, judicial misconduct proceedings are secret. I would support a screening system by which those complaints that turn on a judge's authorized judicial acts are never publicized. But in the current system, even someone who commits an ultra vires act (which the panel recognized Judge Real did) is entitled to a privilege from public scrutiny. That's a poor system, and it undermines public trust in the system.
Good point about moral relativism (or at least judicial activism relativism). How can one know that others “morals” or “modes of decision-making” are changing of one doesn't know whether one's own is static. Indeed, perhaps judges should stop pretending that they possess some ability to discern the ultimate meaning of the constitution and will call close cases in favor of the government. Likewise, since accused criminals (especially juveniles) have little ability to lobby a legislature there will never be a danger of a legislature second-guessing a judge when misinterprets what “the government” wants.
This probably is what a majority of the people want, especially as they claim that somehow resolution of problems via directly elected representatives is more effective than intellectualizing over issues with “unelected” judges.
I think the reaction to Kelo and Goodridge are prime examples of this.
Real's actions seem quite out of the ordinary and most judges I know are quite eager to avoid even the appearance of doing this. But, I wonder if more could have been done about them contemporaneously, such as via a writ of mandamus or prohibition. But, there is nothing stopping the “wronged” party from complaining to the newspapers, and perhaps getting the attention of Congress that way. Likewise, while the proceedings may have been closed (I am not sure about this), their existence was not a secret, and it was possible for a media organization to intervene to attempt to make them open.
But, the problem again is that with life tenure, only Congress has any real power to punish a judge. The court of appeals has can use its mandate to intervene in pending cases, but once the case is concluded (or the judge is not on the case) the court of appeals can't do too much. (I think, in theory, a COA could prevent the DCT from assigning any cases to the judge, but I am not too sure about this.)
FYI, here is another judicial conduct issue: http://home.hamptonroads.com/stories/story.cfm?story=93021&ran=230269
But apparantly it was nipped in the bud quite early.
"Indeed, perhaps judges should stop pretending that they possess some ability to discern the ultimate meaning of the constitution and will call close cases in favor of the government."
I don't want to hijack the judge's comment thread, but it would be interesting if judges would say the following:
1. As a matter of separation of powers, I will call the close ones in favor of the government or;
2. Because I believe that courts are the final arbiters of the Constitution, and because it is the duty of the courts to protect minority rights, I will call the close ones in favor of the individual.
In truth, judges generally adopt one of these models. Because the models are equally valid, I don't consider opinions issued under either, activist. Perhaps if judges overtly admitted this, there would be less confusion and thus (hopefully) less to complain about.
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