Misperceptions, rhetoric about judiciary help make it a target
(published as a guest column on May 14, 2017
Copyright 2017 (all rights reserved)
in the San Antonio Express-News)
Many people have misconceptions or misunderstandings about our judicial system in this country and the people who work within it, especially concerning the role and difficult tasks of the trial judges.
We need only look at the recent past to find prime examples of one misconception: President Trump’s criticism of two judges—acting independently of one another—on two separate occasions because of Trump’s disagreement with their respective decisions.
The first of these criticisms came about last summer, when Trump was a candidate; the second began in February of this year, after he took office.
Trump’s first repeatedly criticized Gonzalo Curiel, a U. S.-born federal judge of Mexican descent who had ruled against Trump University, Trump’s for-profit education company. Based on the judge’s heritage, Trump alleged that Curiel had “an absolute conflict” because of Trump’s hard stance on immigration and his proposed wall along the U. S.—Mexican border. At the time, House Speaker Paul Ryan called Trump’s comments “the textbook definition of a racist comment.”
Just three weeks or so after President Trump took office, he lambasted U. S. District Judge James Robart (a George W. Bush appointee), whose ruling blocked Trump’s executive order halting the U. S. refugee program and stopping all entries into the United States from seven Muslim-majority countries.
Even President Trump’s first nominee to the U. S. Supreme Court, Neil Gorsuch, asked during his confirmation testimony before the U. S. Senate’s Judiciary Committee, to comment on Trump’s criticism, called it “disheartening” and “demoralizing”.
The danger of the type of negative rhetoric displayed by Trump is that it creates and ferments further negative behavior by others towards judges, which isn’t conducive to an independent judiciary, an essential prerequisite of our democracy and form of government.
The negative impact of such unwarranted criticisms was aptly stated by Judge Joan Lefkow, whose mother and husband were murdered by a past defendant in her court.
In testimony before Congress, she told the lawmakers, “I ask you to publicly and persistently repudiate gratuitous attacks on the judiciary.
“It seems to me that even though we cannot prove a cause and effect relationship between rhetorical attacks on judges and violent acts of vengeance by a particular litigant, fostering disrespect for judges can only encourage those that are on the edge, or the fringe, to exact revenge on a judge who ruled against them.”
Trump’s criticisms could also possibly offend Chief Justice John Roberts of the U. S. Supreme Court, who has been widely known to publicly support all lower court judges and their dedication to their duties and rulings, despite the risk of being criticized.
The chief justice, in his annual report this year, called judges “selfless, patriotic and brave.” He added: “This is no job for impulsive, timid or inattentive souls.”
He wrote further about life-tenured judges, “You might be asking why any lawyer would want a job that requires long hours, exacting skill and intense devotion—while promising high stress, solitary confinement, and guaranteed criticism.”
He concluded, “The answer lies in the rewards of public service.”
It’s no wonder that misconceptions, as exemplified by Trump, exist. After all, our school structure, from elementary school to college, offers little instruction on the judiciary. Only in law schools, where a small minority of our students are found, does one get a glimpse of our courts, complex laws, and the various judicial structures of our states and our federal government.
Often, there are no easy answers to questions about the judiciary. Or the answers given aren’t satisfying. There are times when there is no consensus even among legal experts as to a “correct” answer.
Our laws are sometimes unnecessarily complex. They may not lend themselves to hard and fast rules or simple answers.
But the nature of our laws, as well as their purpose, do on occasion justify complexities that may or may not be simple to explain. And thus arises our misunderstanding and distrust of our laws.
There lies the irony in all this. A few years ago, I participated in a program put in place by my alma mater, the law school at Georgetown University. My task was to interview applicants for admission to the school who lived in the Austin area. At some point in the interview, I’d ask each applicant a particular question, not necessarily expecting her or him to give me the answer I was seeking but only to find out about their impressions or understanding of the field they were about to enter.
Here’s the question: Apart from who, such as those involved in law enforcement and our judicial system, what maintains order in a structured society?
I was seeking a concept for the root of the answer. After my 52-plus years as a practicing attorney, almost 14 of which were spent as an appellate judge and after that, 17 years as an arbitrator, mediator, or hearing officer, I finally came to comprehend that what truly maintains such order in our society is our citizens’ tacit agreement, understanding, or acceptance to obey and respect the law.
Think about that for a moment. Under our republican form of government, we in this country, collectively, have chosen to enact laws under which we have implicitly agreed to be governed. Without it, the answer to the question suggests, we’d have no order in this country. That tacit agreement is what gives strength to our laws. That is what our laws owe their existence to.
So I pose the question: Isn’t it ironic that we often misunderstand or distrust the same laws we ourselves made possible by our bond to comply with and be governed by them.