Defending the Defenseless: Including the Courts

Defending the Defenseless: Including the Courts

Courts are constant targets of attack. They are political targets largely because they cannot fight back. Judges are prohibited from most political acts or comments, even in states where elections for the bench are held.

Imagine this: It’s 2010 and Major League Baseball is selecting umpires for the World Series between, say the Minnesota Twins and the St Louis Cardinals For umpires, it’s the appointment of a lifetime. The Commissioner of Baseball sets up interviews with all the umpires who are on the short list to work the Series.

Tough questions to answer. No. They are ridiculous questions that no umpire can or should answer. Umpires are to be neutral parties; the must “call them as they see them.” Umpires must study the rulebook and then make the best call possible when a call must be made. They do not rule in advance, and they do not rule with hesitation when a game is well umpired. Play is accommodated, not inhibited, by the umpire’s role. This what we expect of umpires, and referees, and this is the way we like our competitions to be judged.

What Is Reasonable to Expect?

If a respected umpire is one who makes a good call without playing favorites, shouldn’t we expect the same of our nation’s most important umpires? Our judges. Yet, special interest groups and politicians in the US have nearly always tried to tilt the playing field for themselves. Can we succumb, or participate in this tilting of the judiciary? Of course not. So we must be sure our inputs are positive.

When there’s a conflict, a dispute or even a crime… people count on impartial courts to be the one fair place to resolve difficult problems. Absence of prompt, fair court proceedings for Guantanamo Bay detainees was seen by the world as a massive compromise of national ideals by the United States. Prompt trials, due process of law, and fair proceedings are essential to remove some of this legal black eye from our nation.

For two centuries, we stood before the world as the place where the lowly and even the despised could not be punished without access to a reasonable legal process to adjudicate guilt or innocence. We taught the world that everyone should be able to walk into a courtroom with confidence knowing that her or his side of the story will be heard and that fundamental due process would be observed. The appearance of fairness is important. So is the actual impartiality of the presiding person… and this cannot happen unless the judge is impartial – just like the umpire.

Woodrow Wilson, Speech at Pittsburgh ¶, 1 29-1916.

What should we expect from a judge? It is proper, I think, to expect that a judge does not have an allegiance to any particular person or point of view in the courtroom. He or she must not be not influenced by political pressure or by personal interests or relationships. The judge is to be expected to listen to both sides of the case and make principled decisions based only on the law and the facts of the case. The judge must not be influenced by a “philosophy” that is transcendent; indeed, “judicial philosophy” should stop at loyalty to the law, scrutiny of the facts, and judicious application of law to facts without bias. Within this sphere, judgments should be based on objective assessments of the quality of evidence. Only in the rarest case does the Judge decide what choice between conflicting political or ideological concepts should be chosen for a case’s decisional role.

Fair courts means the common man or woman has equal footing when challenging the government or big business. It allows organizations or businesses to get a full and fair hearing when they are accused of wrongdoing. It allows an unpopular position to be heard. Ultimately, impartial judges make sure everyone’s rights are protected as defined by the law and the Constitution.

What’s the Problem?

So what’s the problem? We are cynical, and uninformed. That’s the problem.

Federal judges serve for life. The United States President nominates federal judges and the U.S. Senate must confirm them. Voters do not have an opportunity to remove federal judges from office, so Senate confirmation acts as a check and balance in the process. No breath of constitutional language or history suggests federal judicial selection was intended to be influenced by the partisanship of the President or the Senate, or by the background of the judicial candidate for anything other than skill level and temperament to serve.

Yet, political allegiances swell around judicial nomination and selection processes and are much in the news, far too often. Each interest seems to have litmus tests for nomination or approval, and few interests seem focused on ability and temperament only.

Many of the issues that trigger their concern are certainly hotly debated: Gay marriage, school funding, abortion rights and immigration to name a few. They are important legal, social and sometimes moral issues. And because there’s a lot at stake, some people will go to any length to have their side win the battle. But as Americans we must insist on having a sacred boundary we do not cross when it comes to our court system. If we can’t trust that our courtrooms will be the one fair place to resolve problems – where else can we turn?

There’s almost always a losing side in court. And the losing side very often questions the judge’s decisions. But just because someone disagrees with the judge doesn’t mean the judge is wrong.

Those groups seeking to make changes at the legislature have their own special phrase when judges don’t rule in their favor. They call them an “activist judge” and accuse them of making decisions outside the law. It’s a phrase that concerns people – and it should – but it’s really a phrase designed to cause alarm and sway you – once again – to their “point of view.”

Special interest groups and politicians should not rush to intervene if they think a judge made a mistake. There is a system to handle that. An appeals court is the appropriate place to determine if a judge makes a legal mistake. It’s a check and balance to make sure people in court get a fair decision based on the law or the Constitution.
Also, legislators can change laws, if the laws are not working the way they intended them to work.

When judges make an unpopular decision, sometimes you’ll hear people scream that’s not what “the people want.” They say the decision does not reflect the majority of public opinion. That may be true, but our courts are not set-up to act on what’s popular.

Sometimes there’s confusion because the other two branches of government often operate on popular opinion. Elected politicians are supposed to represent the people.
Judges do not represent people or serve them, except indirectly. The judge’s constituency is the law itself.

Judges must be able to make unpopular decisions, so they do what’s legally right – not necessarily what’s popular. During the fomenting years before revolution, C L de Montesquieu, observed:

It must be so, Otherwise the mob will always rule. In a famous 1954 case, Brown v. Board of Education, the United States Supreme Court ruled that children could no longer be segregated by race in our schools. At the time, it was a very unpopular decision, but in hindsight, we know it was the right decision.

Judges must be free from political and social influence so they can make very difficult decisions, like the one in the Brown v. Board of Education case. Yet, they must be loyal to the law and reminded of the demand for this loyalty. “The Judge” after all “is nothing but the law speaking.” 2

What About Judicial Accountability?

Judicial accountability is a commonly voiced, but shallow, concern. Judges are accountable to the public for their decisions and their actions in a variety of ways.


The courts do not exist without judges. Broad criticism of “the courts” is pointless. Understanding the function of judging is priceless. Judging is the science of applying the law to facts, and the art of understanding both. No court is fairer than the judge on the bench. And no judge is fairer than his or her heritage, education, temperament, and skill permit. Have this expectation: doing one’s best in a sea of decisions about problems too hard to work out without a judge and a court is all one can reasonably expect of either the jurist or the judicial institution.

1 Montesquieu, The Spirit of the Laws, IV (1748).
2 Benjamin Whichcote, Moral & Religious Aphorisms (1753).