Like it or not, our society is shifting toward more and more politicization of our courts. From the gyrations and machinations of our senators' Supreme Court confirmation hearings to the voter recall of California Superior Court trial judges, no judicial officer can assume that she or he is immune from the swirling winds of politics and the hot wind of politicians. One decision that offends, bewilders or confuses the body politic can be enough to cause a jurist to be sucked into a vortex of name-calling, cause-bearing, agenda-pushing, shrill political hardball rhetoric and lies that are far removed from the calm and considered application of the law to the facts that we, as law students, imagined the law to be about. One judge was removed by recall in Santa Clara County and three more are facing a similar fate in Contra Costa County. The issue is here, folks.
Judges who look over their shoulders to assess the prevailing mood of the public and rule with that in mind, rather than do what they believe to be the right thing in a particular case, have already succumbed to the political pressure that the system is designed to keep them above.It is human nature to want to avoid the headlines and the tweetstorms in which judges are criticized, but the system depends on them being impervious to it, not subject to it.
Because of ethical considerations, judges cannot defend themselves publicly. They cannot tweet back. That they are able to rule without fear of attack is a matter of great public concern.And we are the bulwark against unfair attacks. The legal community has the primary responsibility for educating the public about the importance of independent judges, fair courts, and the separation of powers.
Unfair comments and politicized attacks on judges slowly, but effectively, undermine public confidence in the judiciary. As the pillars of our republic erode before our eyes, it is up to each and every one of us to speak up about the importance of a fearless and independent judicial branch of government.
The American Bar Association and others have resources for rapid response to unfair criticism of judges. Judge Barbara Kronlund and others have presented symposia and lectures on the importance of an independent judiciary. I am proposing that a group of civic-minded lawyers take the next step and form an action committee for rapid response to unfair and unjust criticism of judges. While the San Joaquin County Bar Association is strictly neutral on all matters political, education of the public is a core part of what we do. I am looking for volunteers. It won't be a lot of work. But it will require some preparation before one of our own is targeted. And then some action when it happens. It's your government. It's your profession. It's your country.