I am not going to claim that I am perfect. I am not.
And I am not demanding that judges be perfect. I know they are not. I know they are human beings.
I also understand that the law is complex, with many moving parts, changing all the time. I get that. And I understand that there are many competing pressures on judges as they move through their day.
But the same could be said about lawyers, and yet we can face ethical charges if someone merely claims that we did not do enough research before signing a document. Lawyers also have many competing pressures on us as we move through our day (sometimes we even have two judges demanding conflicting things of us). And I don’t see us being given any breaks – because the law is difficult or we are busy.
And what I am complaining about in this blog, what I am loosely terming ‘judicial misconduct,’ is not about mistakes. (Although I will pause here to note that when a judge makes a ‘false’ statement (even a knowingly false statement) in a judicial order it is called in our business an “error.” And when a lawyer makes a ‘false’ statement, even if it is an error, the lawyer’s license can be hit.)
And the bench culture I am complaining about is not about being too busy. It is an attitude. It is a desire to cut corners without getting caught (certainly without letting appellate courts know about it). It is a willingness to assert one’s will in spite of what the judge knows to be the law. In other words – placing themselves and their conduct above the law.
And the parallel I am trying to draw is that when private people “cut corners” and assert their will in spite of the law: we get locked up. When judges do it, apparently they expect not even to be questioned about it.
Or when they are questioned about not following the law, they throw out a diversion: we are too busy, we don’t have enough time, we need to be efficient, our budget got cut. Let’s play that through from the viewpoint of a member of the public.
Private Citizen A is driving down the freeway, 80 miles per hour. He is stopped and given a speeding ticket. Why? Because he is exceeding the posted speed limit. He comes to court and tells the judge, “look, I was speeding because I am really busy, I had many things to do that day, and I really had to be efficient.” What is the result going to be, judges? Are you going to let him off – because he was busy?
Let’s take a more serious example. Private Citizen B lost her job and has children to feed. Unemployment benefits have dried up. Children are hungry. Private Citizen B takes to selling crack cocaine, and is arrested. That obviously violates the law. She comes to court and says, “my budget got cut, and I need to feed my children. So I had to do it this way.” You going to let her off – judges?
Well, I think you see my point.
What I am talking about is not mistake.
What I am talking about is an attitude.
I remember a conversation in chambers with an experienced judge, who I had respected until I encountered this one case with him. An issue arose in the case, and the Minnesota Supreme Court had just issued an opinion telling us how a US Supreme Court opinion would work in the state system. Me? I wait for these moments, these advances in the law. I drool pulling down these orders, reading them, figuring out how to apply them. But this district court judge actually said, “I heard from other judges that the order is hard to read. I refuse to read it.” (Quotes are to signal a speaker, not necessarily verbatim but close). I nearly fell off my chair.
A district judge, stating boldly he was not going to read the recent seminal Supreme Court opinion. That is not a mistake. That is an attitude.
I do understand judicial mistakes. And that is why I say I expect judges to “strive” to obey the law.
I will also strive to obey the law. Although I realize that around every corner, with every sentence I write – someone can report me to the lawyers board and attack my license. I have always known this. I have always understood that a lawyer is held to a higher standard than a judge. And living on that precipice, I do make sure I can support everything I say. I only wish I could say that about the bench.