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Wednesday, March 25, 2009

Do Judges Deserve To Be Called "Your Honor"?

We started this blog in June 2007 after Mrs. Schnauzer and I had witnessed six-plus years of corrupt actions by judges in Shelby County, Alabama.

The judges in our case happened to be Republican and they happened to be in Alabama. But evidence suggests that judicial corruption is a bipartisan problem that goes from coast to coast.

Still, it's a rarity for a national news outlet to examine the subject. But such a rarity surfaced recently when Dahlia Lithwick, legal affairs contributor for Newsweek and Slate, wrote "When Judges Behave Badly."

Lithwick reports that the first few months of 2009 have been a dark, and most revealing, time for judges. She spotlights:

* The federal judge in Texas who pleaded guilty to obstruction-of-justice charges in exchange for the state dropping sex-crimes charges;

* The Texas appellate judge who was charged with five counts of violating her duty and discrediting the court;

* The West Virginia judge who refused to remove himself from a case even though he had benefitted from $3 million worth of campaign spending from one of the parties;

* U.S. Supreme Court Justice John Roberts, who is set to hear a case involving the pharmaceutical company Wyeth, which plans to merge with Pfizer--and Roberts owns stock in Pfizer.

Lithwick doesn't even mention the ugliest case of all: Two Pennsylvania judges have pleaded guilty to accepting $2.6 million in kickbacks for sending juveniles to private detention facilities.

While Lithwick raises important issues, she tends to focus on cases where judges have potential conflicts or exhibit poor behavior outside the courtroom. She largely leaves untouched the issues of judges who intentionally and knowingly cheat parties before them.

Efforts to control the judiciary often run afoul of the ideal of judicial independence. Whenever the public attempts to tell judges or justices how to monitor their conduct, they run headlong into the argument that judges warrant special deference because what they do transcends politics and public opinion.

It's not a matter of "controlling" the judiciary. But judges clearly need to be answerable to someone. Accountability is grossly lacking in our justice system, and Lithwick seems to know it. But in the end, she wimps out:

The problem is that mixed in with legitimate grievances about judges, there are often many sore losers or litigants who didn't get what they wanted.

Judges are not gods. But we must be honest enough to admit that what looks like bias and corruption to us might just be a fallible human being doing her job. If we create too many systems that monitor the judiciary, we are really saying that we trust their judgment only when they agree with us. We need to separate the real problems of policing the judiciary from the generalized griping that they are old or elitist or out of touch. And in the end . . . we must trust the judges to judge, or do away with the institution altogether.

Where does Lithwick's analysis go off the tracks? It's with this phrase: "What looks like bias and corruption to us might just be a fallible human being doing her job."

Lithwick appears to be talking about discretionary matters, where a judge has the right to make what he believes is the best decision under the circumstances before him. Those kinds of decisions will always be with us, and we will sometimes disagree about them.

But our courts are riddled with judges who intentionally cheat parties on non-discretionary matters. We have judges who knowingly ignore black-letter law in order to favor a particular party.

We've seen it in the Don Siegelman case in Alabama. We've seen it in the Paul Minor case in Mississippi. I've seen it in my own Legal Schnauzer case.

Lithwick fails to mention that the case of Samuel Kent, the federal judge in Texas who first got into hot water over sex-related charges, wound up involving charges of favoritism. Jonathan Turley reports that the Kent investigation included charges that the judge favored certain attorneys over others.

And Sharon Keller, the Texas appellate judge who was charged with violating her duty, habitually favored prosecutors over defendants, essentially substituting her own opinions for the actual law--frightening stuff indeed.

Judges are like teenagers who have been given privileges and freedoms they obviously cannot handle. We are the parents who need to take back the car keys and lay down some serious ground rules. Instead, we are like parents who have checked out emotionally and allowed all hell to break out in the courthouses around us.

I applaud Lithwick for at least bringing up a subject that too often remains stuffed in our collective closet. But in the end, she doesn't treat the problem with the seriousness that it deserves, and she offers no real solutions.

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