Why We Hate To Love Judges

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A judge, the old saw goes, is a lawyer who knew a governor (or a President or a senator). In most states, a judge is a lawyer who knows how to attract voters. Whatever the judge’s secret, the contempt underlying that catchphrase suggests the palpable disdain that tints our view of the whole legal system. We speak with scorn of the “courthouse gang,” meaning the petty politicians who loiter in the temple of justice. We like to think of judges as above all that, yet we continue to regard the administration of justice as a mere extension of politics.

Among the consequences of the 2000 Florida election imbroglio, perhaps the most unfortunate was the pummeling that judges—trial, appellate, and Supreme alike—took from both sides. “These people are too political” was the constant refrain, even as the politicians turned to the courts for salvation. And every court could turn in a day from savior to scoundrel.

Indeed, our attitude toward judges and the branch of the government they represent finds expression in the working quarters we give them. Notwithstanding the United States Supreme Court building, so opulent that Justice Benjamin Cardozo suggested the Justices ride elephants to work, and the outraged attention news media pay to an occasional “Taj Mahal” courthouse, mostly in the federal system, the average state judge spends the day in buildings for which “grubby” would be an encomium and “squalid” a fair description. Beyond that, in many states judges appear to be not members of a governmental branch coequal with the legislature and the Executive but part of a specialized agency like the Department of Public Works. This “agencyization” of the judiciary extends even to the federal courts, whose budget comes under the same congressional subcommittee that oversees the Postal Service.

 

Nonetheless, we reserve for judges as officials, and for justice as an ideal, a level of deference and respect that we rarely grant any other public servants or institutions. “Your Honor,” we call the Honorable Maggie Strate; and any lawyer elevated (or transmogrified) to the robe indeed regards the change as an honor.

In short, we have, despite our complaints about American justice and those who dispense it, an admiration for judges that sometimes swells into idolatry. Few Americans have ever commanded the outpouring of esteem and affection that bathed Justice Oliver Wendell Holmes during the last 20 years of his long life and that have done so even more copiously since his death. Learned Hand and, to a lesser degree, Benjamin Cardozo shared Holmes’s unusual status. All three, it is true, were masters of English prose. Still, neither Holmes’s aphorisms nor Hand’s magisterial yet earthy legal expositions nor Cardozo’s elegant phraseology account for their position in the public’s pantheon.

The reverence that Holmes, Hand, and Cardozo were held in certainly cannot have resulted from any national tendency to treat judges as immune from criticism. Quite the contrary. Let a judge, especially a trial-court judge, rule, for instance, that the prosecutor improperly obtained a confession or unconstitutionally seized a two-kilogram chunk of cocaine, and the sniping begins. Politicians, talk-show callers (and their inciting hosts), op-ed writers, and the ubiquitous concerned citizen—all have a whack at the hapless jurist. Perceived lenience in sentencing a child molester or other type of unpopular defendant draws a similar adjectival fusillade: “softheaded,” “arrogant,” “impractical,” “liberal,” or, if the judge is lucky, “well intentioned but misguided.”

This attitude does not confine itself to so-called conservative law-and-order types. For a time in our history, from the 189Os to the New Deal, a large, vocal portion of the populace saw judges as the Pleistocene guardians of a failed social and economic order. The battles to empower unions, the efforts of various state legislatures to enact workers’ compensation laws and health regulations that would withstand challenges concerning due process, the federal government’s attempts to cope with the Depression—all seemed to incite the opposition of judges for whom the legal shibboleths of the past trumped the needs of the present and the hopes of the future.

In many states, the public can express its dissatisfaction directly. Only federal judges and the judges in three states enjoy life tenure, or until a mandatory retirement age, and that only “during good behavior.” Everywhere else, a judge must stand before the voters to obtain or retain the judicial post; in some states, electoral review occurs as often as every four years.

However long the period of office, an election in this era of media advertising, especially a contested election, takes money. I once heard the chief justice of a populous state admit that his campaign had cost six million dollars. “Where did you get that much money?” I asked. “Oh,” he replied, “widows and orphans.” What happens, one muses, when the lawyer who organized the drive among corporate “widows and orphans” appears in court, arguing the weaker side of an important case?

Financial bugaboos are only part of the risk society incurs when the bench becomes a political prize. The history of judging as an occupation is largely a story of the tension between our desire to make judges—in the words of John Adams’s Massachusetts constitution—”as free, impartial and independent as the lot of humanity will admit” and our equally strong insistence that the magistrates acknowledge their overriding responsibility to the public as a whole.