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Judges as both fallible and potentially excellent

Jul 15, 2014 Judges as both fallible and potentially excellent

Judges are not deities. They are humans. They are selected through a combination of some or all of the following: Meritocracy, vetting for ability (with various sorts and quality of vetting), political considerations, and elections by the public. Even some of the most promising-seeming judicial candidates can turn out to be the opposite on the bench, because nobody has a crystal ball, judging can bring out the best or worst of different judges, and many people simply are unable sufficiently to tame the immense power involved in being a judge and sometimes simply cannot keep up with the job’s demands, which can be said of anyone who possesses immense power.

I was recently before a judge who cut off a short argument I was making against a line of direct questioning by the prosecutor. I stood my ground with the judge by urging the importance of his hearing my short, critical explanation for my objection. He finally let me state my argument. He next still overruled my objection. However, when the prosecutor ultimately offered into evidence the exhibit that was the main purpose of this line of direct examination, the judge kept the exhibit out of evidence. In a short timeframe, I witnessed impatience, dismissiveness, openness, and wisdom from this one judge.

Those lawyers who want a rarefied, academic approach to using their law degrees are free to apply to be law professors or to seek to be among the small handful of lawyers who repeatedly argue before the Supreme Court (but I get exasperated plenty of times over Supreme Court opinions). Trial law can get messy. It is battle and often war. Not all opponents fight fair. Not all judge should be judges in the first place. Even plenty of the otherwise best judges will at times rule improvidently and unfairly. The law may exist as an alternative to having the law of the jungle, but trial work often still is like being in a jungle.

Why, then, do I focus just about my entire career on litigation? Because important battles for the side of the angels await to be fought, and if I refuse to participate in the battles, they will still proceed anyway. Moreover, as much as I regret how unjust the criminal justice system remains, I get as much of a rush today doing my share in achieving justice as I did in my first months in court. And, at the heart of it, I love to fight.

The taijiquan martial art that I practice daily helps keep me in the right frame of self and mind for doing trial battle for my clients. An effective fighter, warrior even, has no expectations that any parties to the fight will be fair or even care about the fighter or his client as humans, just as it is folly to expect that a hungry tiger in the wilderness will not kill and eat a lamb walking fifty feet away.

As much as the following examples are from fiction, they are good examples of getting and remaining on the path of effectively fighting without anger nor expectations of anyone, together with being fearless. In the Kung Fu pilot, Kwai Chang Caine brilliantly neutralizes a racist attacker in a bar as if he is but a pesky fly, with Caine resuming drinking his water after neutralizing each attack. In Abarenbo Shogun (see minute 38) the shogun, although often angry (which has no place in successful fighting and living) methodically neutralizes and slays (this is a shogun series, after all) the mob that seemingly outnumbers him near the conclusion of each episode. Then, in real life, we have taijiquan master Cheng Man Ch’ing sparring with as much playfulness as a child on a toy pony, while executing moves that could cause crushing injuries if he wanted.

Behold the patience of the foregoing three men (which of course is not meant to exclude great women fighters, who include Maggie Newman for martial arts, and, for trial battle, SunWolf, Judy Clark, and Lisa Wayne), both in developing their skills for their lifetimes, and in executing their skills.

Back to today’s subject of the actions and quality of judges, my college ethnomusicology teacher Jeff Todd Titon had a great quote taped to his office door, that music does not require excellence, but delights in such excellence when it arrives. With judges, not all will always perform excellently, but I wish they would. When they do, I of course will welcome and revel in it.

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