Chapter One:
The Monastic Bench
The law, the working of the law, the daily application of the law to people and situations, is an essential element in a country's life. It runs through everything; it is part of the pattern, like the architecture and the art and the look of the cultivated countryside. It shapes, and expresses, a country's modes of thought, its political concepts and realities, its conduct. One smells it in the corridors of public affairs. . . . It hangs together whether people themselves wish or acknowledge it or not.
—Sybille Bedford1
The chief lawmakers in our country may be, and often are, the judges, because they are the final seat of authority. Every time they interpret contract, property, vested rights, due process of law, liberty, they necessarily enact into law parts of a system of social philosophy; and as such interpretation is fundamental, they give direction to all law-making . . . and for the peaceful progress of our people during the twentieth century we shall owe most to those judges who hold to a twentieth century economic and social philosophy and not to a long outgrown philosophy, which was itself the product of primitive economic conditions.
—Theodore Roosevelt, December 8, 19082
Periodically in American history, questions about the judicial branch of government rise to the surface of political discourse. Locally and nationally, the executive, the legislature, and the courts all draw their authority independently from the same short written constitutions. And as Alexis de Tocqueville observed in the 1840s, the United States is a country where great disputes get simplified into lawsuits and resolved, at least temporarily, in the courts, which have assumed and grudgingly been granted the franchise of determining the meaning of those written constitutions.
Government works more directly on its publics through the courts than through any other institution. As Supreme Court justice Tom Clark once said, the courtroom is where legislation finds its teeth. People believe that decisions in court cases expressing the wishes and fears of individuals and organizations far away will powerfully affect their own lives. Ours, for good or ill, is a time when decisions by and about judges occupy considerable political space. In Senate hearings, on radio and television in the states where judges face election, in the offices of the state governors whose powers include judicial appointments, temperatures rise as the politically committed seek judges who will rule their way.
The superstructure of policies that may be devised, enforced, or rejected by the publicized and brawled-over "supreme courts" rests on a rabbit warren of daily business done by 30,000 judges and a million lawyers and the "working groups" in the courthouses managing a docket of almost a hundred million cases a year. Here history enormously complicates understanding, for there is no one court system or, indeed, legal system in the United States. There are fifty sovereign states (plus Puerto Rico and the District of Columbia), each operating its own system of many county courts, enforcing its own laws and constitution. Each has its own legislators writing laws for their state only. Each has its own judges interpreting state and county laws, hearing cases, rendering decisions, bound only by the precedents of their own states, if those. Then there are administrative judges, paladins of the bureaucracy, whose realm forever expands. And on top of the local jurisdictions there is a federal system of laws and courts, more prestigious and better financed but much smaller, charged with providing a national framework of law to span a continent, but at the same time constitutionally constrained to accept and follow the local rules of procedure and local law where applicable.
In Randall Jarrell's wonderful novel about the American liberal arts college, Pictures from an Institution, a refugee German professor of music hears a colleague say, "There is no book of which it can be said that all your students have read it"—and realizes that he has learned something about America. Other than the insistence on decorum ("All rise!" "May it please the court") there is no statement one can make about the courts or their judges in the United States that can be considered correct everywhere. "The courts are very byzantine," says Juanita Bing Newton, deputy chief administrative judge in New York, in charge of the criminal courts. "When I got this job, I told my mother, ‘I've finally found a use for that course I took on the Holy Roman Empire.' " In the words of the Bureau of Justice Statistics of the U.S. Department of Justice, "there is no generic court system in the United States."3
One starts then with the question of whether a judicial profession exists at all in the United States. Judges in different courts lead very different lives. The nation has fifteen hundred or so appellate court judges (about 350 of them judges on "supreme" courts—every state has one, and so does the federal government—more than 175 on the geographically divided federal "circuit courts of appeal"). They breathe a refined and perfumed air totally unlike the polluted stuff breathed by the judges in traffic courts, family courts, criminal courts. They see no litigants or witnesses, hear argument rather than evidence, command the services of young and brilliant "elbow clerks," new graduates from the top of the top law schools who work only for them, to find citations and draft memos. Trial judges sit alone and shoot from the hip all day long. Appellate judges confer in groups before deciding, and can indeed change their minds behind walls of secrecy as a result of those discussions.
What gnaws at them is uncertainty about whether the result of the case is "right." Appellate judges inevitably live and work, as Justice Frank Kennison of the New Hampshire Supreme Court brilliantly put it in the 1940s, "in the partial vacuum of the printed record."4 In theory, the appellate courts exist to correct errors in the trial courts and to assure justice. But as Judge Jerome Frank observed more than half a century ago, if it's justice you seek, you'll find it much more often in the trial court, for justice relates to the persons present in the trial court, not to the abstractions of law. Appellate judges never meet the accused in the criminal case, neither plaintiff nor defendant in the civil case, nor do they lay eyes on the witnesses. "Up there in our ivory tower," Judge Patricia M. Wald wrote while chief judge of the D.C. Circuit Court of Appeals, "we have limited expertise and resources to absorb, synthesize, and accommodate all of the facts and evidence presented by parties throughout the adversarial process. Even if we immerse ourselves ad infinitum and ad nauseam in the technical details of the record, a practice of which I have often been accused, still we are often left groping for the more elusive, intuitive grasp of the essence of a case."5
In trial courts, by contrast, the judge sits on her bench alone and makes decisions bing-bing-bing, in the glare of attention not only from counsel and the working group in the court but also from a public beyond the railing. Sometimes these decisions are en route, about the admissibility of evidence or testimony or lines of argument; sometimes they are decisions she keeps to herself, about whom to believe, sometimes final decisions of guilt or innocence, liability for injuries, obligations to perform under contract, acceptance of agreements, imposition of punishments. And of course, at least for the immediate purpose of the trial, the judge is always right; counsel can take an exception, but the caravan moves on. The judge is a queen in her courtroom, which is to a significant degree a separate realm. What happens to litigants in the American judicial system is very much a function of which judge hears the case. But the trial judge is subject to instruction by a legislature that also decides how much she will be paid, how heavy a load of cases her court will carry, how large a staff of clerks and secretaries and bailiffs and police and legal advisers she will have, how long or short a sentence she may impose on a convicted criminal defendant. And the appellate judges can of course reverse her decisions.
Judges come to the bench from all sorts of backgrounds, some with much experience trying cases, some with almost none. We don't train judges; there is no licensing exam, and no criteria that relate to the performance of the job are applied before a judge takes her chair on the podium above the well of the court. Most appellate judges (and all federal judges) are appointed either for long terms or for life. Their daily experience hearing and deciding appeals permits them to believe that they are not part of the nation's political turmoil and serve only what they are pleased (very pleased) to call the rule of law. The great majority of trial judges, on the other hand, not only come in daily contact with the public but must seek public approval in periodic elections: 90 percent of our trial judges are elected from their state or district or serve subject to voters' verdicts in "retention elections." And judges who have to stand for reelection live daily with the great political truth that people never remember what you did for them and never forget what you did to them. A Connecticut judge, beneficiary of a system in which judges are appointed by the state governor for eight-year terms and then more or less automatically reappointed by the legislature (a system unique to Connecticut), went to the National Judicial College in Reno for a two-week course to hone her skills after fifteen years on the job. "I was appalled," she says, remembering what she heard over cups of coffee from her fellow judges from other states. "Ninety percent of the conversation was about how you had to watch out in the courtroom in case what you did would impact on your election."
But the most important, formative, in-courtroom experiences are shared by all the judges, appointed or elected, trial or appeal, and are exclusive to them. As I started work on this book in 2001, my late feminist wife's feminist sister, the law professor Mary Moers Wenig, sent me off to the annual convention of the National Association of Women Jurists. To them, clearly, there really was a job description, not just a census category, behind the word "judge." The panels included and mixed together a range of judges, from traffic court judges to justices of state supreme courts, but they all clearly felt themselves to be sisters under the skin, sharing the pleasures of deference, the power of rarely challenged decision making, and the pains of overload, time pressure, and the testosterone-soaked atmosphere of trial work. They were pioneers: When they first had thought of the law as a profession, there were virtually no women on the bench. They considered themselves the vanguard of an army, for the predictability of the hours has made the job especially desirable for women. Listening to the participants in their convention, no one could doubt that whatever their rank, they were all in the same line of work. Every court system is a process for forcing decisions on parties compelled to accept the decisions. The people who preside over this process we call "judges."
Writing about judges, however, one must offer the reader observations, attributes, and attitudes: There seems to be no way to communicate how it looks from inside the system. The judges themselves don't—apparently, can't—tell you. Felix Frankfurter noted in a talk before the American Philosophical Society in 1954 that "the most illuminating light on painting has been furnished by painters, and the deepest revelations on the writing of poetry have come from poets. It is not so with the business of judging. The power of searching analysis of what it is that they are doing seems rarely to be possessed by judges, either because they are lacking in the art of critical exposition or because they are inhibited from practicing it. The fact is that pitifully little of significance has been contributed by judges regarding the nature of their endeavor."6 That continues to be true more than half a century later.
In The Ways of a Judge, Judge Frank M. Coffin of the federal First Circuit Court of Appeals (Boston) summed up more than a decade on an appellate bench by describing what he "did"—what he would have done if these had been the facts—in three cases. Two of them were entirely made up; the third was more or less real, but the discussions he reported with his clerks were admittedly fiction. "Judges in recent times," he notes, "have largely left to others the writing about their craft and calling. There are ample reasons for this. One is that the judge's code of ethics precludes his writing about what he knows best—the steps he took in arriving at his last or his most widely known decision—for that decision must be judged solely by what he or his court wrote to justify and explain it. Barred from backstage reporting, the would-be judicial essayist faces the hard fact that judging is infinitely complex. It does not lend itself to an authoritative how-it-is-done book."7
It is of the essence of the work that judges cannot be held accountable anywhere for the decisions they make as judges. They are accountable only to the law itself. This is what we mean when we say "an independent judiciary." Which means on the other side of the coin that judges cannot talk about their work, because discussing a case opens the door to challengers. Someone once asked for an explanation of an opinion from New Jersey Chief Justice Arthur T. Vanderbilt, the inventor of the twentieth-century court reform movement, chairman of the state Republican Party before he became a judge. "I don't explain them, Madam," he said courteously. "I write them." Judicial opinions do not argue that the judges have found the "right" answer, and do not necessarily reveal the arguments that informed the result; instead, they assert the consonance of this decision with others from the past, and insist that this is the answer compelled by the law.
The most common code of judicial ethics actually forbids judges to explain to the public their interlocutory rulings on motions by the lawyers presenting the case, and some of the old canons prohibit judges from discussing any phase of the cases tried before them. Frankfurter, advancing to the Supreme Court after decades as a freewheeling law professor, described himself as "one who is ex officio compelled to deny himself freedom of speech."8 When a judge rules, he speaks from Olympus; when he discusses his work, he is, nearly always, an ordinary joe. For the judge who made the decision to defend it would be to demean it, to reduce an expression of authority to a mere argument. In 1957, when a committee of the American Bar Association adopted a resolution critical of Supreme Court decisions in matters of "subversion," Chief Justice Earl Warren did not participate in a reply, but quietly resigned from the ABA.
When courts are attacked, they cannot respond, a truth obvious to the judges themselves since the early days of the republic. Chief Justice John Marshall sent a letter to Justice Bushrod Washington (George's nephew), commenting on the likely fallout from a decision to uphold and enforce an act of Congress: "We shall be denounced bitterly in the papers &, as not a word will be said on the other side, we shall undoubtedly be condemned as a pack of consolidating aristocrats. The legislature & executive who have enacted the law, but who have power and places to bestow, will escape with impunity, while the poor court, who have nothing to give & of whom nobody is afraid, bears all the obloquy of the measure."9
And of course judges feel themselves physically exposed out in the center of the pedestal in their courtrooms, an inviting target for one of the criminals they have punished or litigants whose cause they have ruled against. Irving R. Kaufman, who sentenced Julius and Ethel Rosenberg to death for helping the Russians penetrate our atom bomb development, had a policeman at the entrance to his apartment house day and night for all the almost fifty years of his life after that decision. Judge Leonard Sand, who presided over the case of the blind sheikh who plotted the first attempt on the World Trade Center, in 1993, has chambers in an otherwise almost deserted floor of the courthouse, because it's easier to keep an eye on a corridor nobody uses. Chicago has installed bulletproof glass between the public and the business sections of its criminal courts. Almost everywhere, the police assigned to courtrooms carry guns. One cannot think offhand of another environment for professional work where guns are visible in holsters on hips.
There is some motion toward giving judges the right to reply to criticism. In North Carolina, the legislature marked the arrival of a new millennium by passing a law that for the first time permits judges to reply to critics. In Connecticut a couple of years ago, the conference of Superior Court judges (most judges in the unified Connecticut system are Superior Court judges) voted to suspend the code of judicial ethics and let a family court judge tell the press that a prosecuting state attorney had lied when he said his office had warned a judge against returning a child to the abusive parent who thereupon killed her. But in general the judge has to stand and bear it in a world where in any event the riposte is always weaker than the thrust.
Copyright © 2006 by Martin Mayer. All rights reserved.
