In this post over at Balkanization, Brian Tamanaha comments persuasively on the perceptions (or misperceptions) many people including his students have about judges and the way they go about the job of judging.He observes that "[e]verywhere you look it seems to be almost taken for granted that the personal values or political views of judges have a determinative impact on their decisions." That view is certainly evident in a recent ABA survey I commented on here.
My favorite part of Professor Tamanaha's post is this quote:
There is no doubt that judges have the power to issue decisions that are based on their personal views, and the skill to couch these decisions in legal argument (the law is indeterminate in this sense at least). And there is also no doubt that certain legal standards by their nature call upon value-based decisions or evoke personal responses from judges. That is a far cry, however, from asserting that judging is just personal politics cloaked in law.I agree with what Prof. Tamanaha has to say and I have made some of the same observations here and here.
There is no question that there are some judges out there who see themselves as being on a "mission from God" (to quote Dan Akroyd in his Ellwood Blues persona) and who are therefore inclined to adopt an "end justifies the means" approach to judging in order to remake society as they think it should be. I will also grant that since judges are human beings, they cannot help seeing every case through the filter of their humanity and life experiences. Every judge would prefer that the widows and orphans prevail over the slumlords but sometimes the opposite result is compelled by the application of the law. When that happens, should the judge ignore the law to serve their personal sense of justice?
It requires constant discipline to be a judge. The discipline to avoid substituting your judgment about what appropriate public policy should be, for that of officials elected by the people for that very purpose. It isn't easy to resist the temptation to use the power you have and I suppose it is harder to maintain the necessary discipline when you have a lifetime appointment and never have to periodically account to anyone for the way you do your job. This is all the more reason why judges at all levels should be chosen carefully and vetted thoroughly.
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Here is a relevant portion of an essay that I had published elsewhere:
"In a recent case the [California] Supreme Court, in a nod to judicial activism, refused, without explanation, to depublish an appellate decision that started its analysis by declaring: “[B]y strict application of the law, appellant should be denied relief,” and ended its analysis by granting relief and stating that they were unwilling to “sully [their] hands by participating in” what they considered to be an “unjust” ruling. County of Los Angeles v. Navarro, 2004 DJDAR 8069 (Cal.App.2nd Dist. June 30, 2004).
In cases in which judges cannot strictly apply the law they have the option of recusing themselves from the case or, better yet, hanging up their robes."
Full article posted at http://hirbodsjx.blogspot.com/2005_05_01_hirbodsjx_archive.html
Okay... so reading through that case, I find that a man was defaulted in a paternity action, following "substituted service" which he claims resulted in no notice to him of the proceedings or judgment, and sought to challenge the order five years later. The default judgment of paternity followed a prior action in another county, where blood tests had already established that he was not the father of the children resulting in the dismissal of that action with prejudice. Non-paternity had been confirmed with subsequent DNA test results.
The court ultimately found that California's strong public policy in favor of correcting mistakes which occur in child support actions outweighed the procedural rules meant to vest orders with finality, quoting the Child Support Enforcement Fairness Act of 2000 ("It is the moral, legal, and ethical obligation of all enforcement agencies to take prompt action to recognize those cases where a person is mistakenly identified as a support obligor in order to minimize the harm and correct any injustice to that person").
That's the best example you can find of judges run amok? Really? Have you even read the case?
The court's citation to CSEFA was wrong (which provides further proof that the court was out of line). The code section cited by the panel was enacted to protect those with cases of mistaken identity (e.g., a different John Doe being served by mistake), not to protect those who sit on their rights for over five years.
California policy, up until this year, and certainly at the time Navarro was decided, was to make sure all children have a father, not necessarily a biological father.
In short, Judges need to simply apply the law, and leave policy making to the legislature. To paraphrase Holmes, if the entire population wants to go to hell, judges ought to let them. That's their job!
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