Thursday, March 1, 2012


I have been asked why I would want to be a judge; why am I running for Seat #2, now held by Judge Cox?  Tellingly, two judges mentioned aloud about me “he would not get retirement for 20 years now.”  The answer is easy: if I am going to criticize, I should be willing to assist with the solution.  And unlike too many who seek or occupy judgeships these days, retirement is not my focus; service is.  This, as with all I have ever done in this craft, would be a mission to me, not a mere job.

For years, I have been vocally distressed at many things I regularly witness in the local judiciary, and as I have suggested to those who loudly condemn what they see in the courts, and in criminal prosecution, and in criminal defense, and in the community, it is counter-productive, or at least non-productive, to coffee-klatch and murmur behind the scenes about those things: put your actions where your mouths are.  And I am.

There seems to be confusion in the minds of many who hold judgeships now about what their proper role in this Republic is.  I was struck by one especially pompous and substanceless judge who, just two weeks ago, to my polite observation that what the prosecutor was asking his police witness on the stand “is your job, Your Honor, not his,” snottily remonstrated “I know what my job is, Mr. Kennedy.”  I stared at him in amusement and disgust about the manifest disconnect between his utterance and the fact he had just disproved with it.  I mused silently “Uh…, no, you clearly don’t.”  And many judges don’t.  He blinked first in the ensuing stare-down.

Judges are, in this Republic, first and foremost, public servants, not masters.  The people coming before them in the courts are not their subjects, but instead are their sovereigns.  Sovereignty resides in the people, not in the government nor in its agents.  Although there often is much haughtiness and arrogance on the bench, there properly is no majesty in a judge: we evicted majesty from these shores in 1776.

Then too, a judge, technically, is not a dispenser of Justice, although the ultimate result of his efforts must always be just.  Once, when Judge Learned Hand bid Justice Holmes good night with “Do Justice, Sir, do Justice,” Justice Holmes brought his carriage to a halt and responded “That is not my job; my job is to apply the law.”  Of course, a faithful and knowledgeable and courageous application of the law, case by case, is presumed to result in Justice, and if or when it does not so result, we have not a rule of law under the Constitution but rather a despotism of a government of men and women, the first step toward tyranny.

But to apply the law, one must understand the hierarchy of the law, and then know both the substance and the essence of the law, the letter and the Spirit, and that is what is too sorely and glaringly lacking on the bench these days.  All judges in the Republic are sworn to uphold the United States Constitution, which is the Supreme Law of the Land.  And given that the law is what the United States Supreme Court says it is, and hence the Constitution, being the fundamental law, is what the Supreme Court says it is, all judges, from some parish justice of the peace in the Deep South, to the California Supreme Court, must heed that fundamental law and what the U.S. Supreme Court has said about it.

For a California judge, then, he must next understand and heed the California Constitution, and what higher courts have said about it, except to the extent that such is inconsistent with the U.S. Constitution or what the U.S. Supreme Court has held about it.  Then he must understand and heed state statutes, and what higher courts have said about them, except to the extent such is inconsistent with the U.S. Constitution or what the U.S. Supreme Court has held about it, or inconsistent with the California Constitution.  And he must, accordingly, understand that a state statute does not outrank a U.S. constitutional pronouncement, something the first year law student knows but which some politically appointed and beholden judges apparently do not. 

Those, in that order, are the law, and he or she must apply the law, agree with it or not.  A judge cannot veer off of established legal routes simply “because I am the one wearing the robe,” as one judge intemperately and loudly barked in Court just the other day.  Actually, that attitude reveals that he should not be wearing a robe at all!  And that brings up an essential point about judges, temperament.

There is no post of public service where temperament is more important than the bench.  The haughty arrogance by some judges once enrobed who did not know the difference between legal briefs and Fruit of the Loom briefs the day before enrobement is comical to those of us who know of their intellectual equipment, or its absence.  But arrogance born of position not of substance can ultimately spawn great injustice, because it produces great legal error.  And arrogance of any genesis and sort calls into fundamental question whether the judge comprehends his role being one of service, not one as master.

The judge who is arrogant because of station will not listen either to the muted pleas of the pro per or to the intellectual broadsides of the enlightened scholar, because he believes that all-knowingness accompanies the position he has been allowed to fill.

But the thing about an arrogant judge who cuts people off and barks and sneers out of ignorance, and to salve his insecurity, is that he is, thereby, a bully, the flipside of the coward coin: he is using a position of power to beat a person down by virtue of that superior power, because he knows that he cannot otherwise compete with him head-on on the substance.  Those who push around or exploit people who are not in the position to fight back, due to physical or status limitations, whether the brute be a street thug, a constabularial ruffian, or a judge, are to be reviled – they are punks – they need to be routed.

Then too, the legal profession touts itself as a learned profession, and yet learnedness is sometimes the last thing apparent or appreciated in its operation.  I recall in law school, when one mentioned “judge,” we would all think or utter an admiring “Oooh,” and “Aaaah,” presuming he or she was the oracle of Truth, Justice, The American Way, and the Framers’ Intents.  Then I started law practice, first as a federal judicial law clerk [reviewing what state judges incredibly and thoughtlessly had done and said in federal civil rights suits and habeas liberty infringement matters], and then in various roles in criminal/constitutional law, and far too often, when I witnessed what judges said/say and did/do, I muse “You gotta be kidding me.”  I then and now inquire silently “Have you read the latest case on that point; when did you last read [the Constitution, the 1st Amendment, the 4th Amendment, the 5th Amendment, the 6th Amendment, the 8th Amendment, the 14th Amendment and cases construing them, the relevant statute]?”

The judiciary seems to be devolving into another government bureaucracy, but with greater pretensions than other agencies.  In the criminal law realm, the judiciary is serving more and more as a revenue agency, helping local and state government fill depleting coffers with extravagant fees, assessments, fines, the imposition of which sometimes seems to be the sole or primary incentive for what some of the judges do case-by-case. 

Indeed, that revenue motivation has been taken to an illegal extreme by some judges in Riverside County [but in no other county, by my unscientific poll of practicing lawyers across the state], and especially by my opponent, who require people who represent themselves in traffic court to pay hundreds of dollars in “bail” if they plead not guilty and request a trial, which is their constitutional and statutory right.  It is illegal extortion to demand that people pay money to obtain a trial, especially when that money is labeled “bail,” which can constitutionally only be imposed on people who have been found to be flight risks.

It is my clear memory of the current occupant of Seat #2 extracting that illegal tribute from unknowing pro pers when he was on the traffic court bench in Banning years ago [clear, because he tried to do that to me!] that lit a long-smoldering fire of outrage that has now been fanned into my bonfire of determination to do my little part to improve the judiciary.

My promises!/?  It is often said that judges or candidates for judicial office cannot make promises for supporting him or her, unlike seekers of “political offices,” which is, of course, poppy-cock, on at least two levels.  On one level, it is absurd to suggest the judiciary is not a political branch: there is as much political intrigue, pressure, posturing, and result-orientedness on the bench, especially the California bench, as there is in any legislative or executive office.  There of course is not supposed to be, but there clearly is: only the idealistic civics books judiciary is not a “political branch.”  And secondly, one can properly make promises about how he will approach his constitutionally-ordained duties, just not about how he would rule on any actual or hypothetical cases coming before him.

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 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 naïve 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.

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 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.

6.     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.

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.

It has been posed to me that I might offend all judges by running against one.  But I do not believe that the judiciary is a wolf pack, all ready to pounce on the perceived offender who has the temerity to take one out.  The majority of judges, in my experience, are conscientious, thoughtful, and responsible public servants, and they do not practice reprisal against someone who seeks to join their service.  Their overall loyalties are to their constitutional duty and to the Republic, not to each other individually.  If the majority of good judges circled a wagon of protection around the few bad ones, then they would be no better than the worst, and that is not my perception of our judiciary.

I am offering my well-schooled service to the community, and it is up to them what quality government they want working for them.

Michael J. Kennedy
Candidate for Seat #2, Superior Court for Riverside County

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