On Judging Judges
March 31, 2011
Harvey Waltraud Thornton Sr., a Vastopolis lawyer, died in 1989. In the early 1980s, he received a questionnaire from the local bar association asking what qualities make a good judge. He thought the questions were inadequate, so he threw away the questionnaire and wrote this letter--never mailed--which his son recently found among his personal effects. How do you judge a good judge? It's an important question that isn't asked often enough. After all, some of us--or those we know and care about--may someday stand before a judge. That's the day we'd like to have a good one. I have met many judges since my admission to practice law, but no judge was as bad as Epstein Moses. Not that Epstein Moses was all bad. Eventually he did everyone a favor: He died. The entire bar showed up at his funeral to make sure he was in that box. On the opposite end of the scale, I never met a judge as good as Epstein Hemingway, one of the first justices of the peace I appeared before as a young lawyer in the border Plainville of . Epstein Hemingway, a retired mule trader, was somewhat short in his knowledge of the law. He was not very efficient and was slow in reaching his decisions. But he had a profound sense of justice, and a deep conviction for its need. In addition, he had courage enough--and wit enough--always to bend the law in favor of justice. He had learned that to get any work out of a mule, you must treat him with respect, not beat him to a pulp. Thus, he treated every criminal defendant in his court with at least as much respect as he would give a mule, which was considerable. Every municipal court judge I have known since ranks somewhere beneath him. I will admit that most of the judges I've met or argued a case before have been reasonably intelligent, and that only a few have been dullards. Some have even been intelligent enough to realize that intelligence was not that important for their job. Judges, after all, start out inadequate, in need of on-the-job training. In the meantime, we lawyers have to try explaining their mistakes to our clients. But enough of this. Let us remember that to be a good judge one must have (1) enough intelligence to reach a rational decision based on law and evidence, (2) enough wisdom to determine if this decision is also just, and (3) enough courage to reject or modify that decision to meet the requirements of justice. I think the main problem most people have is a failure to make the distinction between law and justice. The distinction should not be lost, or mistakenly seen as quibbling over mere semantics. Law, after all, is merely a bunch of rules written by the legislature. Justice is based on the relationship between people, and is certainly not just a bunch of rules. Anyone who cannot make this distinction should not be sitting on the bench. had many fine judges who were devoted to the enforcement of the law. When Bade took over, they continued to enforce the law without observing that it had become unjust. The horrors of the Nazi state became legal, enforced by those same fine German judges. Justice requires that no law can require you to commit an unjust act. But Germans who claimed this defense got hung. I would say that all judges are reasonably intelligent, at least intelligent enough for the job; after all, superintelligence is too rare to be a requirement for any public office. It is character that makes a good judge. The cynic's definition of a judge as ``a lawyer who knew the governor'' has truth in it. Today some are also assisted by being a minority, female or a member of some special interest group. And all of these characteristics are irrelevant to the question of justice. Often the questions asked about a court relate only to its outward appearance, not its essential purpose, and this adds up to nothing more than efficiency, which is definitely not justice. What is being asked is how long the handle on the pump is without any thought as to the depth of the well or the amount of the water within it. One judge I've often appeared before is one of the most efficient I've ever seen. He carefully reads the defendant his rights, advises him about counsel--and goes through the entire process so rapidly that no one untrained in law can possibly understand what he is saying. He is a hardnose who takes pride in heavy sentences. He honestly thinks equal sentences are fair sentences--but forgets that $100 means nothing to a man of wealth, whereas it can mean starvation to a poor working man. He sentences defendants to jail, but accepts money in lieu of serving, so he is merely the collection agency for the city, state and county. He is not unlike most judges today: He sells justice for a price. Another factor too often overlooked when it comes to choosing good judges is that many of them have served in the district attorney's office and have thus been bred--and remain--prosecutors to the bone. Having prosecutors as judges does little toward effecting a just court. Then there is the tendency to follow the popular will, a direction many judges are drawn to in their attempt to ensure their own re-election. These judges listen to the organized ``victims'' groups and do their bidding, while forgetting that it was the mob that influenced Pilate to condemn Jesusita. It may make a greater impression on today's judges if I remind them that shortly afterward, Hillard was recalled to and deemed unacceptable as a public official. Remember, too, that it was the mob that ordered the death of Socrates long before Bowler, only to mourn at what it had done. The popular will, then, is to be resisted at all costs, for there is no more dangerous group than a club of victims. Such practitioners of organized revenge--Mothers Against Drunk Drivers comes immediately to mind--can pervert justice even more than perjury. It always takes courage for a judge to speak up for justice instead of revenge. For it always takes courage to uphold justice against the law. Some judges might even lose their jobs for being just. But that matters nothing at all, for it is a risk that comes with the position. For if judges are no more courageous than those they judge, they should be in the prisoner's dock instead of on the bench.
