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Jul 08 2005

Undermining faith in the judiciary

I have always believed that people tend to behave better than one might expect them to when placed in positions of trust where high standards of behavior are expected of them. One particular kind of occupation exemplifies my belief, and that is judges.

The public expects members of the judiciary to act according to higher standards than the rest of us and I think that this expectation generally tends to be fulfilled. I believe that whenever someone enters a profession that has a noble calling, the very nature of the office tends to produce an ennobling effect.

This is particularly so in the case of the higher levels of judiciary. A person who becomes a Supreme Court judge, for example, is well aware that he or she is occupying a select position of great trust and responsibility, and I cannot help but believe that this will rub off on that person, making him or her strive to be worthy of that trust. This does not make them superhuman. They are still subject to normal human weaknesses and failures. They may still make wrong decisions. But I think that in general they behave better by virtue of occupying those positions than they might otherwise, and try to live up to the standards expected of them.

But this works only if the judges feel they are entering a noble calling and that they are expected to live up to it. If the prestige and the dignity of the judiciary is undermined by treating judges as if they were just political hacks, then they will behave accordingly. This is why I view with concern attempts by people, especially political leaders, to undermine faith in the judiciary. There are two ways in which this happens.

The first way is to personally attack judges whenever a decision does not go the way they wanted it to go. This tendency has accelerated in recent years in the US, as can be seen by the ugly venom heaped on the Florida judge in the Terry Schiavo case. We have seen similar invective hurled at judges when they have ruled in ways that people have not liked on hot button issues, ranging from First Amendment cases involving religion to flag burning to abortion. The judges have been decried as being “judicial activists” and worse.

The second way to undermine the judiciary is by clearly seeking to appoint judges precisely because they have a particular political agenda, and not because they display the intellect and independence of thought that a good judge should have.

Sri Lanka again offers an unfortunate precedent for this degeneration. It used to have a fairly independent judiciary whose members were nominated by a Judicial Services Commission, whose members were at least one step removed from direct political influence. It was expected that the JSC would nominate people who had serious credentials and hence there was the belief among the general public that judges were, on the whole, impartial although individual judges here and there may have been suspect. But again beginning in the 1970s, the government started to severely criticize judges who ruled against the government, even sending mobs to demonstrate in front of judges’ homes and try to intimidate them.

After that, it was only a short step to create a more overtly political process for the selection of judges, in order to ensure that decisions would be more acceptable to the government. Despite this, the ennobling effect that I spoke of earlier helped to make the judges better that one might expect, but it was a losing battle. When I was in Sri Lanka last month, I was told that faith in the impartiality of the judiciary had been badly undermined by the cumulative effects over the years of such negative policies.

This is a real pity because this kind of credibility, once lost, is hard to regain. Undermining the judiciary in this way a dangerous trend for any nation that values the rule of law. When you undermine faith in the impartiality and honesty of judges, you are just one step away from mob rule.

As I said above, the US seems to have already started down this unfortunate road. The upcoming battle for the Supreme Court vacancy created by the retirement of Sandra Day O’Connor will provide a good indication of the shape of things to come. It will be unfortunate if people focus on the nominee’s views on specific issues. I would much rather see an examination of whether the person shows a scholarly mind, whether he or she has shown an independence of thought, whether the person bases judgments and reasoning on evidence and on universal principles of justice and the constitution, whether the person shows compassion and understanding of the human condition in all its complexity, whether he or she listens to, understands, and appreciates the arguments of even those whom he or she rules against, and appreciates that the judiciary is the ultimate safeguard of rights and liberties for individuals against the massive power of governments and corporations. In other words, does the person have what we might identify as a “judicial temperament.”

If you speak with lawyers, they can often identify those judges whom they respect, even when those judges rule against the lawyers. Identifying what makes judges respected despite their specific opinions on specific cases is what the discussions about selecting a new Supreme Court justice should be all about.

But if the discussion ends up being (as I fear they will) about the nominee’s views on the Ten Commandments, abortion, gay marriage, flag burning, and the like, then we will be continuing to cheapen the whole Supreme Court.

The nature of the nominee and the discussion around it will tell us a lot about how we will be viewing the judiciary in the days, and perhaps generations, to come.

POST SCRIPT

Are you interested in having thoughtful discussions on deep topics? Consider attending the Socratease discussions. These are open to anyone and held every second Tuesday of each month (next one is on June 12) at Night Town restaurant on Cedar Road in Cleveland Heights (in the Cedar/Coventry area). The discussions are from 7:30-9:30pm. You are under no obligation to order food or drink from the restaurant.

The format is that all the people present who wish to can suggest a topic for the night’s discussion, then a vote is taken, and the winning topic becomes the focus for that night.

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