Equal Justice Under Law
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"The germ of destruction of our nation is in the power of the judiciary..."

-- Thomas Jefferson (1821)


A Rebuke of Modern Judicial Practices

In an introduction to a collection of essays on judicial misconduct, Lawrence R. Velvel, Dean of the Massachusetts School of Law, expresses grave concern over how the conduct of judges is destroying faith, trust, and confidence in the legal system.

In recent years, there has been a rising crescendo of complaint over the legitimacy - sometimes even the honesty - of particular judicial conduct. From political conservatives have come charges that judges are overriding the will of the people as expressed in statues and referenda relating to abortions, gay rights, affirmative action, religion and other subjects. From political liberals come charges of bias against women, sexual misconduct, harshness toward the interests of minorities, and forced imposition of deeply conservative political views. From both sides, depending on whose ox was gored, come charges of overriding the people's views and protecting the professional politicians by striking down term limits. From all venues - even from high-priced corporate lawyers - come charges of frequent tyrannical and arbitrary conduct by trial court judges. Misuse of position and even bribery are known to have sometimes existed.

Exacerbating the situation, boards and commissions set up to deal with judicial misconduct often lack will, power, and effectiveness; few judges are brought to book, and commissions, comprised largely of judges themselves and staffed by defenders, may function more to protect miscreants than to punish them.

There is much in these various critiques that is difficult to deny or disagree with. True, the claim that judges are usurping power by constitutional decision making may be unsustainable because there have been nearly two centuries of judicial decision making on sensitive political issues. Yet one does wonder whether some recent decisions simply outrun common sense. In any event, it is impossible to condone bias against women, sexual predation, tyrannical conduct, or misuse of position.

Beyond these matters, my thirty-four years as a law professor or a litigator have persuaded me that there is yet another problem, one that is widespread. It is that judges too often are unwilling to listen to facts or reasons. Rather, they start with predilections heavily favoring one side - predilections which they, of course, deny - and then prove impervious to facts and resulting reasons contrary to their bias. They are impervious when the evidence overwhelmingly supports such facts, even when the facts are not denied. Not untypically, they also invent - they literally make up - supposed counter facts. An analogy to judges' resistance to facts is the O.J. Simpson jury, which was not about to let the facts get in the way of its prejudices.

As one might expect, prior predilection, associated resistance to facts, and plain invention of counter facts are employed in the service of establishment views and to protect the establishment in a wide range of areas. (One does not find them employed against the establishment.) In my own career, I have personally experienced or otherwise observed these phenomena in litigation challenging the constitutionality of a war waged by powerful presidents in Vietnam, in litigation challenging the accreditation of law schools by, and other actions of the powerful American Bar Association, and in litigation challenging the interests of powerful corporations.

When judges act on the basis of their prior predilections, ignore facts, and even make up supposed counter facts, they destroy a central tenet of the judicial system: decision of cases based on facts rather than prejudice. They also (like the Simpson jury) destroy faith in the judicial system. The general public will not continue to give its trust and confidence to a system which makes decisions by ignoring truths that are plain for all to see. And persons who are directly and personally injured by such decisions will be bitter toward a system which they rightly feel denied them a fair chance after promising it to them.

This bad situation is made even worse when disregard of facts is combined with other "features" that often are concomitants. For example, a judge may insure that facts contrary to the side he favors are kept to a minimum by denying "discovery" of those facts. Discovery is the legal process by which, before trial, a party receives documents from the other side and examines the other side's personnel. It is the crucial engine for uncovering truth in a lawsuit. Its importance is made dramatically clear if you consider that, after years of succeeding in litigation by withholding discovery of incriminating documents, the tobacco companies' resistance collapsed when the incriminating information began to come out in various ways. Judges with a predilection for one side can and too often do suppress contrary truth by denying discovery, using one pretext or another for the denial.

Another example occurs when judges - almost unbelievably - hold secret hearings from which the disfavored party is barred so that it cannot examine witnesses and learn facts. A judge may also receive secret evidence and then refuse to turn it over to the disfavored side. (What was in that famous envelope given to Judge Ito, anyway?)

Yet other examples occur when a judge claims there is reason to disqualify the counsel who, because of knowledge and experience, would be best able to uncover the facts, or when a judge who is accused of bias refuses to disqualify himself and to let the case be heard by a different judge who would not ignore or bury facts.

Prior judicial predilection and associated imperviousness to facts, judicial invention of purported counter facts and concomitant problems are among the most important problems of the judicial system today. It would be beneficial to the system, would prevent the law from being a hollow mockery of its promises, and would help maintain the faith of citizens, if judges were to stop ignoring facts in order to enforce their own predilections.


The Author:  Lawrence R. Velvel is Professor and Dean, Massachusetts School of Law, and Editor-in-Chief of The Long Term View.  His comments preface a collection of 20 articles on the topic "Judicial Misconduct," published in the Summer, 1997 issue (Vol. 4, No. 1).  These articles can be accessed at the law school's Web site at www.mslaw.edu.
 
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