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.

Now, it takes no deep study of human nature to recognize that independence and accountability are, in the courtroom at least, virtually incompatible. Judges at every level regularly make decisions that broadly affect countless individuals and organized constituencies. Think only of rulings touching congressional redistricting, or abortion, or, in less sensitive areas, the right to sue for tobacco-related diseases or the right of a shareholder to bring action on a corporation’s behalf against its own officers. Even a judgment on whether a multitalented athlete should play basketball or baseball arouses the passions of the competing franchises’ respective adherents.

Criminal cases also provoke judge-targeting partisanship. In the abstract, we all abhor crime. Everyone wants proper punishment for the guilty, just as everybody expects that a fair trial will precede the determination of guilt. In reality, however, we tend to blur the distinction between accusation and proof, between passion and rationality. This is no modern phenomenon. Consider the Salem witch trials, the execution of Quakers in seventeenth-century Boston, and the obloquy in which his contemporaries drenched John Adams for defending the British soldiers in the aftermath of the Boston Massacre.

All these matters, civil and criminal, igniting in one way or another the interest and passions of average people, exert immense pressure on the judges who must decide them. It is a pressure that all judges feel, even as they try to resist it. Generally, we expect our judges not to yield—that is, not to decide any case on the basis of a calculation as to whether one outcome is more likely than another to receive the acclaim of editorial writers, talk-show callers, legislators who control judicial salaries and operating budgets, or, most important, voters.

So one aspect of our national judicial ideal is the judge who calls them as he or she sees them. At the same time, we very much expect our judges to demonstrate sensitivity to what the people desire in the way of legal rules. Because many of the decisions agitating this demand arise in a constitutional context—as, for example, when a trial judge rules vital evidence inadmissible because the police broke into a home to get it without benefit of a warrant—many people regard the judge as assuming the right to determine political issues in a manner both inappropriate and at odds with common sense.

 

These are rational, if deplorable, reasons for disapproving a judge’s performance. Sometimes the motivation is even more tenuous. On Election Day 1994 in Houston, the Republican torrent flushed off the bench a number of experienced Democratic judges whose sole disqualifying defect, it seemed, was their party affiliation. The episode echoes the account of the Athenian magistrate Aristedes, who around 450 B.C. had developed such a reputation for fairness that he was known as Aristedes the Just. When the time came for the citizenry to assess his service, Aristedes found that his popularity had evaporated. The ballot form in those simpler days was the ostracon, a pottery shard on which one wrote the name of the individual whose tenure was at risk. (Our word ostracize derives from the practice.)

As Aristedes walked through Athens on voting day, an illiterate vagabond, not recognizing him, asked him to write “Aristedes” on an ostracon. The magistrate did so, then asked the beggar if Aristedes had ever done him any injury. “None at all, but I am tired of hearing him called ‘the Just.’”

Judges today do not risk banishment on those terms. Yet even so-called retention elections can be nasty, though the ballot question is only “Shall Judge X be retained in office?” Consider Justice Penny White of the Tennessee Supreme Court, who lost her seat because she had merely joined in, not even authored, a decision that was regarded as unduly disfavoring the death penalty. In some places, to forestall such a result at the trial-court level, judges facing a retention election or a tough contest receive no criminal case assignments for a year before the election.

Sometimes a judge handing down an unpopular decision, or even a merely controversial one, risks social ostracism. When the late federal judge Frank Johnson of Alabama made and enforced desegregation orders in the 1950s and 1960s, his acceptance quotient dropped noticeably. The rulings of the Massachusetts federal judge Arthur Garrity in the 1974 Boston school case had protesters picketing his home. Two of my own colleagues have been similarly picketed and even threatened for making unpopular rulings concerning abortion law.

Judges, even those in very high places, exhibit a sensitivity to the opinions of people with whom they associate. In 1928 Chief Justice Taft wrote the Supreme Court’s opinion in Olmstead v. United States , which for the first time approved the introduction of wiretap evidence, in this instance against the mastermind of one of America’s most sophisticated bootlegging operations. Looking forward to the fiftieth reunion of his Yale class of 1878, Taft worried that his classmates would shun him. His concern proceeded not from a fear that the Old Blues would, like Justice Holmes in his dissent, damn wiretapping as “dirty business” or that they would, like Justice Brandeis, decry electric eavesdroppers as “men of zeal, well-meaning but without understanding.” No, Taft fretted about the friends of his youth because they were the sort of people who patronized bootleggers. Happily, nostalgia trumped resentment. The Bulldog Blues of ‘78 gave “Big Bill” the welcome he craved.

However harsh and physically threatening the treatment of a federal judge, it does not imperil or even jeopardize the judge’s position. Johnson and Garrity, like all judges appointed under Article III of the United States Constitution, held lifelong appointments, tenable so long as they behaved properly.

The idea that a judge should lose office only for improper personal conduct, and not for having displeased the sovereign, even the sovereign people, is a concept as American as the Declaration of Independence. One of the accusations against King George III was that he made judges dependent on his pleasure, whereas British judges had previously held their seats since 1701 “during good behaviour.” The Framers of the Constitution wished to shield the federal judiciary from the sovereign’s whims.

WE WANT OUR JUDGES IMPARTIAL, YET ALSO SENSITIVE TO OUR DESIRES.

Insulating judges this way comes, as does everything in a body politic, at a price. Tell a judge that only gross misbehavior will bring about forfeiture of the office and you run the risk of encouraging petty tyranny. For better or, as some constitutional scholars think, worse, we have settled on conviction after impeachment as the only way to remove a federal judge. Conceivably, perhaps even plausibly, one could argue that if “good behavior” is the litmus for remaining a judge, the federal courts, which are charged with interpreting the Constitution’s language, retain implicit power to determine whether a given individual has passed beyond the behavioral pale. This would provide a handy, fair, and efficient way to rid the system of people who, in the common phrase, no longer deserve to wear the robe.

The impeachment-and-conviction process, by contrast, is cumbersome, requiring not only a favorable (or, rather, an unfavorable) vote in the House of Representatives but concurrence of two-thirds of the Senate, not just a simple majority. It is hardly a coincidence that only 13 judges have ever faced the impeachment process; of these, the Senate convicted only 7. Among these men (no woman judge having yet undergone this ordeal) was the district judge John Pickering of New Hampshire, in 1804, whose senility once saw him rising, as was then the custom, to charge the jury and, losing his thought, turning to lead the startled jurors in prayer. After “Amen,” still oblivious, he serenely ordered a recess.

In those days, before Congress had established a retirement program for federal judges, impeachment was the sole available means of removing a judge found physically or, as in Pickering’s case, mentally unfit to discharge his duties. Indeed, even thereafter such gross misconduct as renouncing allegiance to the United States itself or conviction of a serious crime will not, of its own force, suffice to evict a judge.

At the outbreak of the Civil War, West H. Humphreys, a United States district judge in Tennessee since 1853, not only wrote and spoke publicly in favor of secession but actually undertook to serve as a judge for the Confederacy. Although he abandoned his former courthouse, he did not surrender his commission. Not until 1862, after impeachment in the House and conviction in the Senate, did Humphreys cease his double officeholding.

In a more egregious recent case, Judge Walter Nixon, of the Southern District of Mississippi, who was indicted, tried, and convicted of perjury in 1989, refused to resign even after his prison term commenced. In fact, Nixon continued to draw his judicial salary until the Senate ultimately convicted him—three years after the jury had.

As recent nonjudicial history reminds us, the constitutional standard for removal from office is conduct amounting to “high crimes and misdemeanors.” No one, however, has ever been able to define the phrase precisely. It seems reasonably certain that high modifies both crimes and misdemeanors , but problems arise in the subsidiary definitions. By high crimes the Founders obviously meant something more weighty than a mere municipal infraction. Where, then, is the line between the ordinary and the high crime? Misdemeanors , on the other hand, must have some connotation beyond the present-day notion of a minor criminal offense. To the modern ear, in fact, a high misdemeanor makes no sense, because a misdemeanor is by definition a low-level violation. Does the word-chopping have even less meaning when the subject is judicial deportment?

The key to these riddles is disturbingly clear. Although the Constitution specifically refers to “conviction” after impeachment, constitutional removal from office is not a criminal process, nor is the consequence penal. True, committing a serious offense, like treason, murder, or embezzlement of public money, will certainly subject a judge to the impeachment process. Nonetheless, an impeachable offense does not necessarily break the criminal law, nor is the impeached judge entitled to the safeguards with which the Constitution (at the prompting, it must be said, of the courts) envelops anyone accused of, say, common burglary.

The simple fact is that impeachment is a plastic process, and defining a high crime or misdemeanor lies pretty much at the whim of the House majority and two-thirds of the Senate. One of the nation’s earliest impeachments—the second ever of a judge—made this clear.

Samuel Chase, who as a young lawyer had played a prime role in Maryland’s pre-Revolutionary uproar and had signed the Declaration of Independence, took his seat on the Supreme Court in 1796. In those early days of the judicial system, the Justices rode individual circuits throughout the country, presiding over trials in tandem with local U.S. district judges and also attending to in-state legal business, which included instructing federal grand juries.

As an institution, the grand jury had roots far back in English legal history. It existed not to convict or acquit but merely to detect evidence of criminal activity. Upon being sworn in, the grand jurors received from the presiding judge a “charge” as to their duties. In England and, over time, in the colonies, the judges took the opportunity not merely to educate the jurors but to expand partisan doctrine.

Here Chase stood out. A Federalist in a time of rising Jeffersonian Republicanism, a reactionary conservative in the era of the French Revolution and the political ferment it was engendering even here (as early as 1796 the French government had tried, albeit unsuccessfully, to boost Jefferson into the Presidency), the florid Chase, nicknamed Bacon Face, turned tepid grand jury charges into masterpieces of scalding invective. “The bulk of mankind,” he told a Baltimore grand jury in 1803, “are governed by their passions, and not by reason.” He went on to castigate “the modern doctrine by our late reformers, that all men, in a state of society, are entitled to enjoy equal liberty and equal rights,” a radical principle that had been embedded in the Declaration of Independence.

FEDERAL JUDGES ARE INSULATED FROM THE PUBLIC WHIM—AT A PRICE

Add to Chase’s political impropriety his sarcastic, sardonic personality and bombastic courtroom demeanor, and the urge to remove him became irresistible. An hour after the Senate convicted the hapless, brain-damaged Pickering, the House returned articles of impeachment against Chase. One might well argue that—leaving aside the political aspects of Chase’s conduct—the evidence of his bullying lawyers and improperly interfering with the selection of juries and making consistently biased evidentiary rulings would suffice to demonstrate that he had ceased to manifest the “good behavior” that the Constitution makes a prerequisite for judicial office.

The Constitution, however, prescribes the impeachment process as the sole means for unseating a federal judge. Because both the initiation (the articles of impeachment) and the consummation (conviction) require legislative action, removal necessarily becomes an essentially political proceeding. At the very least, conviction will afford the President, or, in the case of a district judge, a senator, a valuable judicial slot to fill. This tends to cause the participants to view the proceedings through a politically oriented prism.

Chase’s impeachment carried particular political significance. First, removing him would take out a Federalist Justice and give the Republican President, Thomas Jefferson, an opportunity to put in someone more attuned to his decidedly differing views. Second, and even more important, if Chase fell, the next target would be Chief Justice John Marshall himself, author of the recent decision in Marbury v. Madison , which enshrined, if it did not establish, the principle of judicial review.

Jefferson and his followers found intolerable the idea that seven politically isolated and, worse, politically impregnable men could defy the combined judgment of the people’s representatives and their elected leader. If, however, the Justices knew that their judicial conduct might cost them their seats, perhaps they would act more circumspectly.

After a Senate trial whose presiding officer was the lameduck Vice President Aaron Burr (himself under indictment for the death of Alexander Hamilton), with 52 witnesses, including Marshall himself, the Jeffersonians failed to muster the necessary two-thirds majority, and Chase retained his seat. Well might the disappointed President agree that “impeachment is a farce which will not be tried again.”

Jefferson got it half right. Chase’s impeachment was deadly serious, but at least where a judge is the target, the process has been limited only to allegations of misconduct approaching, if not attaining, criminality. Dissatisfaction with a judge’s judicial performance, however intense the disapproval or distasteful the judge’s action, does not open the exit door. The Framers deliberately rejected a tenure test of “maladministration” because, as the distinguished scholar of impeachments Raoul Berger has said, the judge would then be sitting at the pleasure of the legislature. Yet the then Congressman Gerald R. Ford was correct when, in arguing unsuccessfully for the impeachment of Justice William O. Douglas, he observed that the criteria for tenure in office rest in the discretion of a majority of the House combined with two thirds of the Senate. (It is one of history’s diverting ironies that when Douglas finally retired, Ford, by then President, named his successor.)

This is the sort of undefined, perhaps undefinable, delicate balance on which our constitutional form of government depends. In theory, Ford’s observation could presage the dismissal of any judge or justice, or, for that matter, any President. Yet as the late professor Austin W. Scott used to say when a student posed a far-fetched hypothetical situation, “You’ve conceived it, so it’s conceivable, but otherwise, it’s inconceivable.”

The legacy of the Chase affair illustrates two points about the place of judges in our national consciousness. First, despite our impatience or even anger at the way the judiciary conducts the public business, we generally regard the judicial framework as an apparatus too fragile to withstand the political wear and tear we expect, indeed encourage, in the elected branches. Second, we do not like our judges to adopt any overt political stance. When sitting judges have undertaken extrajudicial assignments, they and the judiciary have almost always paid a political price. Our first Chief Justice, John Jay, went to England at President Washington’s request to negotiate a treaty. Jay, whose early career had involved extensive successful diplomacy, brought home an agreement that, whatever its intrinsic merits, won him broad personal disapprobation.

In our own time, Supreme Court Justice Robert H. Jackson took over the prosecutor’s role at the Nuremberg War Crimes Trials, and Chief Justice Earl Warren chaired the commission that came to bear his name, collecting the evidence on President John F. Kennedy’s assassination. Neither of these undertakings fits properly with the American concept of the judicial function. Jackson, particularly, found himself occupying antithetical public roles, as both judge, albeit a judge on leave, and prosecutor. And, of course, the part the Court played in the 2000 election, whatever one’s view of the outcome, subjected it to stinging accusations of playing politics.

IT IS THE HUMAN WITHIN THE CLOAK WHO MATTERS—AS REHNQUIST SHOWS.

It is not that we do not wish our judges to have political awareness. After all, most state judges must run for re-election. Moreover, at the highest appellate level, many decisions are overtly political: Think only of Baker v. Carr (one person, one vote) and Brown v. Board of Education (school desegregation). It has been a truism since the nineteenth century that as Tocqueville noted, in America every political issue turns sooner or later into a legal question. Nevertheless, we feel uncomfortable when a court seems to be slipping into a legislative or electoral role.

Of course, judges occasionally turn overtly into nonjudicial politicians. Thus we tolerate the suggestion that one or another Supreme Court Justice might make a good presidential or vice-presidential candidate, as, for example, with Justice Douglas in 1944, 1948, and 1952.

Our model for judges who feel nonjudicial elective stirrings is Charles Evans Hughes. Despite a brilliant early career on the Supreme Court, he resigned in 1916 to accept the Republican presidential nomination. “I at once resigned from the Court,” Hughes later wrote, “telegraphed my acceptance, and plunged into the campaign.” But 15 years later, after losing that race, resuming a successful legal career, and serving as Secretary of State, he returned to the Court, this time as Chief Justice.

An earlier Chief, Marshall, had also been Secretary of State. Indeed, he had retained the post after joining the Court and participated in the selection of the inaccurately but indelibly described “midnight judges,” those Federalist judicial appointments President John Adams made just before his term expired. Curiously, Adams’s successor, Jefferson, who possessed an unlimited capacity for defaming Marshall, never raised the issue and in fact asked the Chief Justice and ex-Secretary of State to administer his presidential oath of office.

Marshall, a notoriously careless and sloppy dresser, wore a robe on the bench. However, Holmes, during almost all his state-court service, sat in his English-tailored suits because a century earlier the Massachusetts judges had renounced the robe. The matter of judicial attire bespeaks Americans’ ambivalence toward our judiciary. A robe imparts a solemnity that street clothes do not; it also suggests an Olympian quality in the wearer. Beyond that, the shape and blackness of the robe evoke images of a priest handing down the word of the Lord. The physical elevation of the bench intensifies the idea of lofty separation from the rest of humankind. Looking up at the robed judge, it is hard to remember that originally judges wore robes simply to keep warm in drafty, barely heated courtrooms.

A judge wearing business clothes, on the other hand, is someone just like the rest of us. It is no coincidence that Massachusetts judges resumed the robe after Holmes became chief justice there, not because he ordained it but because the bar actually petitioned the court to restore the formality. Perhaps the lawyers believed that justice is more nearly the pure article if whoever dispenses it looks solemnly unapproachable.

Judges know better. As if to emphasize that it is the human within the cloak who matters, Chief Justice William Rehnquist has taken to presiding, even over a presidential impeachment trial, in a robe of his own design featuring gold sleeve decorations. He is said to have drawn his inspiration from the lord chancellor’s regalia. Not the lord chancellor of Britain but the character in Gilbert and Sullivan’s Iolanthe . Thus, even in the judicial empyrean, life follows art.

We Americans do not know what we really think of our judges. Even in fiction, our uncertainty stands out. Are they heroes or villains? Recall the calm and judicious Judge Weaver in Anatomy of a Murder (written, incidentally, by a sitting member of the Michigan Supreme Court), especially as played by that homespun lawyer from State Street, Boston, Joseph Welch, who himself contributed to the image of American justice by his famous confrontation with Sen. Joseph McCarthy. And remember Lewis Stone playing the kindly, wise Judge Hardy, father to Mickey Rooney’s Andy. But then remember Hawthorne’s cruel Judge Pyncheon, in The House of the Seven Gables .

Perhaps the best historical example of our schizophrenic treatment of judges came during Franklin D. Roosevelt’s so called court-packing scheme. Frustrated, as were many Americans, by the Supreme Court’s consistent rejection of laws calculated to meet the stresses of the Depression, Roosevelt conceived the idea of bringing additional Justices to the Supreme Court, ostensibly to aid in the work but actually to provide a majority that would sustain his New Deal legislation.

It was not the most straightforward way of solving the logjam, but given the need for progress, neither was Roosevelt’s plan entirely irrational. After all, Congress had changed the Supreme Court’s number of seats at various times in the past. Indeed, in light of the tremendous electoral victory he won in 1936, Roosevelt might plausibly have believed that the country would continue to support him in this fight.

He miscalculated badly. Led by the astute Chief Justice Hughes, popular resistance to any kind of tampering with the Court buried Roosevelt’s scheme under an avalanche of sentiment. However loud the popular dissatisfaction with the failure to sanction badly needed legislation, the American people were resoundingly unwilling to vent their rage either on the Court itself or on the Justices personally.

No surprise. We may hate judges, but we have never stopped loving them.