Monday, January 30, 2012

Judicial Elections: Pay Attention

          When election season rolls around, especially the presidential election season, there is invariably the discussion of what voters should look for in a candidate for various offices, and virtually all offices are hotly contested – except judicial offices.  Why is that?  In our state, trial court judges have enormous power, and in exercising such, they can do great good or great mischief, and if the latter, it is rarely reversed.
          People’s liberties, property, and lives revolve around what judges do and say, and what they do and say is sometimes [read “too often”] related more to their temperaments than to thoughtful attention to, and understanding of, legal dictates.
          It is a truism that the judiciary, both in Framers’ design and in practice, is an “independent branch” of government, but “independent” does not always translate to “neutral,” even though too many too often, in the academy and in the law, think they are synonymous.  The “independence of the judiciary” had to do with a Framing value that the judiciary was not to be a part of the executive or legislative branches, but was instead to be independent from them and to be its own branch.  It was thought that independence would be one guarantor of neutrality, which is the summum bonum of judicial activity and service.
          But even though we do have an “independent” judiciary in this state, there is nothing neutral about it.  The overwhelming majority of the trial judges in this state, in excess of 90%, are recent former prosecutors.  If you think that makes for a neutral judiciary, think again.
          Most prosecutors spend much of their time distrusting, and plotting against, criminal defendants and their attorneys, and covering up for their cops’ transgressions [unless such become wildly excessive, and sometimes even then].  Like it or not, that is a truism.  So, we are to think that when they suddenly get elevated to the bench, with police and prosecutorial support and endorsements, they magically become neutral?  What do you think is the quid pro quo for the extravagant and widespread support some DA-judges receive from police and prosecutorial and other governmental agencies?  Are you so naïve that you think neutrality visits a judge who was the patron of partisanship?
          And everyone is a potential victim of the partisanship of non-neutral judges.  All you have to do is walk into a traffic court sometime and witness the extravagantly pro-cop atmosphere from the bench to have the scales fall from your eyes.  That partisanship exists in most courtrooms, but the higher the category of crime, the more subtle it generally [but not always] is.
          Judges are supposed to be public servants; the public are not their subjects.  And when you are victimized by a rude, arrogant, blustery, overbearing, partisan judge, Lady Liberty sheds a tear.
          Be careful of for whom you vote, and if the person seeking your vote comes at you with a list of government and police and prosecutorial endorsements, you know that you and your family’s liberty would best be served by voting otherwise.  Judging that is not neutral is…, well, not “judging,” but is instead “imposing.”

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