Thursday, March 1, 2012

"Promises" When Running for Judge


DIFFERENCE BETWEEN RUNNING FOR ELECTION
FOR JUDGESHIPS AND FOR OTHER POLITICAL POSITIONS

Contrary to the elitist rhetoric one often hears on this subject, judges are politicians, and their elections are political contests: the judiciary is a political branch, despite the contrary hype.  But those running for, or serving as, judge cannot make the same sort of broad-brushing “promises” that other politicians regularly make, and just as regularly break.

That is, judges act case by case, judging the merits of things properly coming before them, instead of dealing with things in a broad, programmatic way.  They are bound, first, by the United States and California Constitutions, and then by other laws, which include statutory law, case law, and customary law, case-by-case.

So, even though I am motivated to run for judge because of what I have been distressed about in the Courts, from lack of neutrality to lack of dedication to the Constitution to the lack of scholarship to a lack of courage to a lack of understanding of the role of the judiciary in the Republic, my “promises” could only focus on how I would attend to those matters in the cases coming before me; I could not promise to overhaul, correct, remedy the judiciary as a whole.

That is, those running for the legislature can, and frequently do, make board-brushing promises about correcting the improving the whole [which they then never do], my promises can only be about how I would conduct myself in the context of cases and people before me, and I shall do as I promise: my soul has to last longer than any job, which has been my mantra and performance my whole career, and my whole life.

So, for instance, I can promise that I would never take advantage of people appearing as their own counsel [“pro pers”], and I would especially never illegally and unconstitutionally require those appearing in traffic court and pleading not guilty to pay a “bail” [read “anticipatory fine”] to obtain a court trial, as my opponent James Cox regularly and outrageously did, but I cannot properly promise “therefore, I’ll clean up the judiciary’s illegal practice of doing that throughout our County.”  The latter would not be part of my role; the former is part of my mission and promises on which I am utterly unwavering.

As some of you know, I am running for election to Seat Number 2 of the Superior Court, a county-wide election for a judicial post generally assigned to the Indio/Palm Springs area.

So let me reiterate the promises I previously published, with people understanding that I am a strict constructionist, originalist conservative, the true conservatism which characterized our Founding fathers, not the police power right wing extremist version which has co-opted the label while profaning the substance.

These are my promises:

1.     Neutrality will be the goal and execution of my service.  No one will come into my courtroom with a leg-up on credibility or on merit.  It is obvious that all litigants and interested persons have a stake in the outcome of cases, from arresting officers, to prosecutors, to the accused, to the accused’s counsel.  Any Pollyanna suggestion otherwise is na├»ve or duplicitous.  Accordingly, I shall listen to and study the testimony and the arguments and the papers of all participants and shall arrive at decisions without regard to the identity or station of the people presenting them. Indeed, I look askance at any judge who is “endorsed by law enforcement” or by any force associated with any primary litigants before the courts, because there manifestly is a quid pro quo for such endorsements that does not spell “n-e-u-t-r-a-l.”  Then-soon-to-be Chief Justice John Roberts said it best at his confirmation hearing, and he defined what will be my standard:
“Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire. Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.”

2.     I shall not let “black-robe-itis” infect me, as we have seen happen to so many other judges who started out with promises of thoughtfulness and neutrality, but who soon sunk into the stock and growing pro-government statism they promised to avoid.  Read #1, supra Who and what I am and what I profess and promise shall not change after I don the robe.  My soul has to last a lot longer than any “job.”

3.     I shall not presume that I know everything about any subject or issue merely because I am the “one wearing the robe.”  A robe is not a talisman of power or omniscience, but rather and simply a covering of the person to enable and guarantee and give the appearance of neutrality, and to avoid distractions associated with the judge’s personal attire: all judges look alike so they will apply law according to neutral principles.

4.     Related to #s 1 and 3, I shall listen to, and shall assess, and, where necessary research, all presentations of law and fact given to me by all litigants and shall not presume any side is right or wrong because of the identity of the side which has made the presentation.  I know a lot, but I do not know it all, nor will I act as though I do, and I literally learn something I did not know about this craft every day, and I shall continue to be open to being taught by others.  I will always be open to approach by counsel by either side [provided the other side is in attendance on pending matters] about any issue of law or fact.  My devotion to learnedness means I want to learn, not to command.

5.     I hate bullies, be they of the street, of the schools, of the constabulary, of others in government, of the bench, or of any setting in which people of greater power pick on those of lesser power, and I have never been one and will not be one on the bench.  There are too many bullies on the bench, especially with pro pers, and I shall never sink to that flip-side of cowardice.

6.     Related to number 5, I shall not bark at nor berate any person in the courtroom, be they counsel, litigant, public [who has a right to attend most court proceedings without explanation or harassment], nor especially court personnel [who are exceedingly vital, and often thanklessly so, to the operation of the whole].  If I cannot get my point across without being blustery and rude, I have no business being in the position of service allowing me to make judgments against others’ lives, liberty, or property.

7.     If any participant exclaims that “the cases hold” thus and so, I will expect them to identify specifically what cases hold what.  I have learned from 30 years of observation that when counsel of either side trumpets “the cases hold,” without any citation, there are no cases so holding, and that is a misrepresentation of law to the Court.

8.     I will also be open to anyone quietly approaching me and suggesting that these promises or other standards of being a judge in this Republic are being violated by me.  The isolation somewhat necessary to neutrality can sometimes result in the judges who do want to operate under proper principles to lose touch with certain things, and I will appreciate suggestions that these promises of a devotion to neutral, properly-principled service have transmogrified into less than the ideal.  My greatest fear, my greatest nightmare, would be that I would start to become like the judges I have properly reviled over the decades, because then I would be a failure as a lawyer, as a public servant, as a steward of the Constitution and of the Republic, and as a man, and I will welcome input about that.

That is who and what I am; those are my promises.  Do not be lulled into the belief that incumbency is a virtue when it comes to public service, because it is not.  Everybody whom the public empowers to serve them needs to prove that they deserve the public’s entrustment at election time.  I do.  My opponent does not.

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