Judges: Neither Politicians nor Kings

The fount of justice runs dry when unqualified and unprincipled people get elected to judicial positions of power—positions they neither deserve nor respect. It runs dry because, under the present judicial system, judges are politically elected or politically appointed, rather than meritoriously selected and elevated to the bench on the basis of their scholarship in the law, unblemished character and conduct, and uncompromising sense of justice and equanimity. The fount of justice also runs dry because judges are shielded by immunity which largely places them above responsibility and accountability, creating an overly broad and unnecessary latitude for uncontrolled and unrectifiable misconduct that engenders an indulgence akin to royalty (“The King can do no wrong”). Further, too many Americans subscribe to an underlying childlike fantasy that a figure garbed in a black robe, sitting on an elevated bench, is somehow mystically endowed with the omniscience of “the good parent.”

Our treasured system of justice has become an “idealized image,” to use a term of psychoanalyst Karen Horney, “a false and exaggerated estimate of what we want it to be, derived more from fantasy and wishes than from reality.” This judgment is based upon my personal experience during more than 25 years as a medical-legal trial attorney, appearing in many courts and before many judges at various levels. It is not an ideal system because of the nature of the institution of our courts and judiciary itself. It is une système défectif, as the French would say. It is a defective system that allows—and in too many instances attracts—deficient lawyers to “run” for the bench and then, once elected, to act as virtual royalty. Unfortunately, there remain enough people—many with direct or indirect political interests, many handicapped by naiveté, and many seduced by an “idealized image”—to support this social system and to sustain its vitality.

Let me give the example from Judge V.’s Domestic Relations courtroom. In 1997, David C. came to court representing himself (pro se) with a routine “Motion for Reduction of Alimony and Child Support Payments,” because he was laid off for a scheduled six months plant retooling. Prior to

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having to miss his last support check, he had an unblemished payment record, but his income was now limited to unemployment compensation, which would not be forthcoming for at least two weeks. He simply wanted a temporary reduction in his support payments until he returned to work again. While waiting patiently, David noticed a local television crew, as well as radio and newspaper reporters in the courtroom. When his case was called, he stood up respectfully and addressed Judge V. “Your Honor, I would like to request a temporary reduction of—.” Before David had completed his first sentence to the court, Judge V. banged his gavel repeatedly on his bench, shouting out “contempt of court angrily.” Simultaneously, two burly bailiffs of the Domestic Relations Court seized David from behind, slammed him to the floor, and handcuffed him behind his back. His face, frozen by disbelief, appeared on the television news that evening, showing the bailiffs pummeling him down the courthouse corridor to the county jail below.

He was unceremoniously and ignominiously dragged away before the local news media because Judge V. was facing his re-election campaign with a formidable opponent from the opposite political party. Judge V.’s reputation as persistently biased in favor of men and against women had led his opponent to rally the League of Women Voters, the feminist movement, and a coalition of wives who had been mistreated and victimized in Judge V.’s Court. The opponent had also mounted a campaign of letters to the editor. With the election only weeks away, the heat was on Judge V who needed to dramatically alter his image with women voters, lest the female electorate send him back to his failed legal practice. To salvage his re-election, Judge V. used David’s one missed support payment and innocent Motion to demonstrate before all the news media that he was “tough on defaulting husbands” and “vigorously protected disadvantaged wives and dependent children” in his court.

This travesty of justice was permitted to happen because overly broad “discretion,” shielded by “immunity,” permitted it to happen. Judges have the inherent power and discretion to vindicate the authority and dignity of their court by punishing contumacious behavior with an edict of “contempt of court,” i.e., by fines or confinement, calculated to instill “respect” in the offender.

Judge V. and David C. was a bizarre but not isolated instance of judicial abuse. A West Virginia judge actually bounded down from his bench and punched the nose of an attorney who took issue with Judge W.Va.’s ruling. Was the conduct of either judge appropriately exposed and punished? The judge from West Virginia was publicly exposed and eventually publicly reprimanded, but was permitted to continue on his bench. Judge V. was never privately, much less publicly, reprimanded.

Our judicial system is much too political. Lifetime judicial appointments—notably to federal district and appellate courts and even to the United States Supreme Court—are often merely disguised political appointments, not appointments on merit, character, judiciality, or scholarship. The post-Election 2000 rulings in both the Florida Supreme Court (whereon a large majority are Democrats) and the United States Supreme Court (whereon a preponderant majority are conservative Republicans) are a graphic example of this. The Gore-Bush Presidential race cogently demonstrated that no judge, justice, or chief justice, however high the court, is above political considerations when he or she secured his or her position by political appointment engendering political expectations

Let us return to the “Good Parent Fantasy.” When a judge is addressed as “Your Honor,” it supports the psychic needs of those seeking an omniscient and omnipotent parental figure. In retrospect, psychohistorians must wonder, How in the world did a judicial system of, successively, a “federation,” a “republic,” and a “democracy,” all alien and antithetic to a monarchy, come to retain all the royal appendages of British monarchy? Particularly when the gestation of that judicial system occurred during a period of enormous antipathy and bellicosity toward that very monarchy? At the time that the Second Continental Congress of the original 13 colonies (the “federation”) adopted the Declaration of Independence, the government of King George III was brutally subjugating the American colonists, transporting British troops to suppress the colonial governments, and plundering, murdering, and imprisoning, without trial, all who resisted him. Why, then, did the American judge, sworn to uphold “due process of law,” emulate the character of an odious British King, rather than that of the patriotic pioneers who detested kings, royal rule, and imperial arrogance?

The intriguing parallels between an American jurist and an English King provide a most captivating subject for psychohistorical inquiry. The

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King ensconces himself in his castle; the judge similarly secludes himself in his “chambers.” The King’s entrance is announced by his royal courtier, “Gather ‘round and pay heed! Now comes His Majesty The Honorable King George III! God bless England, and long live the King!”; the judge’s entrance is similarly announced by his court bailiff, “All rise! All rise! Hear ye! Hear ye! Hear ye! This honorable court is now in session. The Honorable ____ ____ presiding!” The King’s subjects (those in attendance) must rise, curtsy, and bow when the King appears; the judge’s subjects (lawyers and parties in the courtroom) similarly must rise when the judge enters. The King enters in a fine ermine robe; the judge wears a black cotton robe. The King sits up on his throne; the judge, on his bench. The King must be deferentially addressed as “Your Highness”; the judge, as “Your Honor.”

All this pomp and ceremony in the courtroom erroneously suggests that judges are somehow aristocratic and superior, and that others are comparatively common and inferior. It also tends to instill in some judges a demeanor of pomposity and imperiousness. Judges are as human as anyone else. If you doubt this just look at one the day after he loses an election or encounter one at the hardware store—wearing frayed jeans, counting out his pennies, buying a piece of pipe to fix his toilet at home. Tradition is not unimportant; but egalitarianism and justice must rank higher.

We perpetuate a dangerous, undemocratic myth when we elect judges, allow them excessive discretion and immunity, and accord them trappings of royalty, rather than appointing the best on their merit. I would like to propose some changes in the present system in order to improve the quality, quantity, frequency, and reliability of justice in our courts: Dispense with politically electing or politically appointing judges and justices; appoint them on their merit; don’t elect them as politicians. Use merit boards, the membership of which are mutually approved by bar associations and community residents. Narrow the latitude of judicial discretion and the parameters of judicial immunity. Remove judicial robes, which are not essential to “deciding issues”; corporate executives and American Presidents wear street clothes, not robes, and their responsibilities are no lighter. Remove elevated benches, and with them the tendency of deficient judges to view themselves as “superior.” Dispense with the practice of addressing judges as “Your Honor”; ours is a government of democracy, not of royalty.

In conclusion, America’s practice of treating judges as royalty is based upon a fantasy of treating them as idealized parents who are above reproach and the normal checks and balances to which other mortals are subject. The pomp and circumstance of the courtroom must be replaced by procedures more befitting a democracy. Judges should be appointed on merit rather than through political connection. Our democracy deserves an ethical, high quality judiciary that is more attuned to the needs of the people and no more above reproach than other professions. This will serve justice far better than our present system.

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