Do Judges Want Reform? (Part 1)

Today I am thinking about the good judges.  Today I am thinking about how hard it must be, at times, to be them.

I am thinking about how strong they must be – to follow their values, follow the law, if the judicial culture does not support that.

And I wonder.  Do these judges want reform?

Here I am talking about my brand of judicial reform.   I am talking about a justice system that requires judges to follow the law and ethical rules, and holds them accountable when they do not.  (I am not talking about what some are trying to pass off as judicial reform, which is really taking removing out right to select judges by election.  Of course, those people have a right to express those opinions.  I just don’t agree that that is “reform.”)

So my mind often wanders to those judges who are disciplined in their research of the law, upright in their morals and ethics, and want to decide cases one at a time, applying the law to the facts.  What do those judges think of colleagues who don’t?

What if you were a ‘good judge,’ and you officed right next door to a judge who had ex parte communications with lawyers and others.  A judge who bullied other judges into ruling a certain way.  Or even worse, a judge who fixed cases for friends, political allies or others?

If you were a ‘good judge,’ wouldn’t this bother the heck out of you?

So the question needs to be asked – what is a good judge to do?

Where in the justice system can these good judges go?  When have we communicated to them that standing up and speaking out against the ‘bad judges’ is the right thing?  My fear, is that we have not.  My fear, is that they live in fear.

Why fear?

Because even when you are a judge, a culture that is designed to quell speech, to propagate “groupthink,” to reward judges who “go along to get along,” must be a scary place.

Why don’t the ‘good judges’ make reports to the Minnesota Judicial Standards Board?  Could it be that they view that board as unsafe?  That they fear the one punished in that process will not be the ‘bad judge,’ but them?  And if they feel this way – who do they tell?

As a lawyer, I have bemoaned the strangulation of my First Amendment rights.  But I believe that as a judge, it is even worse.

Some brave judges do speak out.  Read An Opportunity for Leadership Is Lost, 55 Drake Law Review 611 (2007), by Minnesota Judge Kevin Burke.

. . . If courts attempt to curtail speech through government regulation, what message do they convey regarding the judiciary’s commitment to the values embodied in the First Amendment and what message is conveyed about the judiciary’s confidence in the public? The essence of effective leadership is to engage people in a voluntary and non-coercive manner. To paraphrase Hamilton, judicial leadership is found upon the power of our intellect and wisdom, not our sword. Effective judicial leadership is not fear driven.  If the right of free speech could actually undermine the principle of judicial impartiality, then perhaps the problem lies not in the right of free speech, but the judiciary’s lack of confidence in its relationship with the public.

Id. at 621.

I’m sure Kevin Burke and I don’t agree about everything.  But my guess is he would say that I have a right to say what I think, even if I am a lawyer.

Since I started this blog, I have received an outpouring of support from the community of judicial reformists (around the country and beyond) and communities of color (who really have to be judicial reformists – don’t they?).  I cannot tell you the water that is to this arid soul.  It can be a lonely and scary thing, being a judicial reformist.  But at least I have community.  I at least have some ability to reach out to others and say, hey!  Do you feel the same way I do?  Do you want to get involved?  Do you want to stand together as we tackle this problem?  And my community answers me:  yes!

But what about the judges?  Who do they turn to?  Where do they go?

(Read Part 2 tomorrow.)