Saturday, June 11, 2016


For purposes of this discussion, let's agree that the sentence in the Stanford swimmer rape case was incorrect.  Hell, for purposes of this discussion, let's just call it an outrage.  OK, we have that covered.

I would like to argue that the effort to remove that judge from the bench for this one decision is, from a societal point of view, contrary to the interests of having an ordered society.

The petition effort has its basis in the belief that the judiciary is somehow supposed to be "responsive" to the desires of the electorate.  This is a misunderstanding of the the third branch's role.

Legislatures are sent to vote on public policy and they are sent by electors with the expectation that they will pursue the goals that caused the people to send them to seat of government.

The Executive, President or Governor, is supposed to see to the goals the people expressed when they elected him.  To a greater or lesser extent, the legislative branch and the Executive Branch are supposed to be "responsive".  If they don't do more or less exactly what we want, we know how to get rid of them.  They must respond to us.

We send (and every state does this differently) judges to the bench to be impartial and to apply the law to the facts without fear or favor.  Think about this:  It is impossible to be BOTH impartial and responsive at the same time.  In judges, we prize and seek judges who are skilled, of course, but, above all, are imbued with impartiality and integrity.  If society, or aspects of it, can recall or bully judges into deciding things "their" way, then we have no more independent judiciary.  Or, to put it another way, we have no effective third branch of government.

It is not difficult to imagine how badly a two-legged stool works.

Australia went through kind of similar social movement last decade.  Their then Chief Justice, Sir Gerard Brennan (no relation to Babs) had some interesting remarks and observations then, that apply nicely to our current situations.

" But the implications for our society are profound. Judicial independence does not exist to serve the judiciary; nor to serve the interests of the other two branches of government. It exists to serve and protect not the governors but the governed. But, you may ask, if that is so, why do we see so much ill-informed criticism of the judiciary? There are many answers to this question, but it cannot be doubted that one answer is this: there is a lack of awareness of the extent to which the peace and order of our society depend upon the maintenance of a strong and independent judiciary as the third arm of government...."

"The reason why judicial independence is of such public importance is that a free society exists only so long as it is governed by the rule of law - the rule which binds the governors and the governed, administered impartially and treating equally all those who seek its remedies or against whom its remedies are sought. However vaguely it may be perceived, however unarticulated may be the thought, there is an aspiration in the hearts of all men and women for the rule of law."

"  Judicial independence is the priceless possession of any country under the rule of law. The public are entitled to insist on its observance by the judges and on its protection by the Parliament and the Executive."

There is a price to be paid for judicial independence.  The absence of recall or ballot initiatives is one price.  This necessarily means the occasionally "clanger".  Many would argue that the Stanford sentence was one of those clangers.  The judge exercised his independence in a way that angered many people.  Many of those angry people would trade the concept of an independent judiciary for the "feel good" proposition that they can "get" a judge for one arguably poorly conceived decision.  As Chief Justice Brennan points out, that is a bad trade, giving up judicial independence to scratch a short time itch.

Ask yourself, "do I want to know I'm getting a truly impartial judge for my case, whatever it may be, when it comes before the court or do I want a judge who must necessarily cower before petition drives and ballot initiatives?"

On the federal side, why do you think the drafters created lifetime appointments for members of the judiciary.  THAT's how important they thought a tamper-proof judiciary was.

NOTE: nothing in this discussion is intended to discuss the details of the Stanford rape case.  I said my piece on that on facebook.  I welcome your comments on judicial independence here but let's not rehash the rape case because it is beside the point of this submission.


At 1:47 PM, June 12, 2016, Blogger T. Scott Galloway said...

Of course we all want to believe that judges are impartial, but at the State level they are elected public servants. As such it is both implicit and explicit that they must serve a constituency - while we would hope that constituency is truth and justice, the amount of money spent by the rich and powerful on judicial elections suggests that the judiciary is not immune to pressures that affect the legislative and executive branches.


Post a Comment

Links to this post:

Create a Link

<< Home