Wednesday, August 04, 2004

Judges Should be Seen-Not Heard

In the Victorian age, when I was a child, a popular grown-up adage was “children should be seen and not heard.” That’s not easy for kids. It is unsettling going down a slide with your mouth open in a silent scream. The behavior of kids today proves that the rule has been repealed with a vengeance. That is why I favor enacting a new rule that takes the old one even further: “Children should not be seen, heard nor had.” Why such a draconian measure? Just look around you: brains, noses, and tongues all pierced, blue hair, tattoos of Dante’s inferno adorning parts of the body one should only see in the National Geographic.
When I am in a restaurant and approached by someone wearing a ring in her nose who says, “Hi, I’m Debbie your server,” I go back to my prehistoric roots and invariably order body parts: liver, brains, tongues, legs or ribs, none of which are good for you.
But my rule would not be enforced today. That is because kids have rights. They sue their schools, their parents, their baby sitters and their coaches. But with rights also comes an occasional burden. Some kids have been sued by record companies for instance.
A variation of the rule that no longer applies to kids does apply to Judges. It is an unwritten rule of survival, “Judges should be seen and not heard . . . except for the occasional ‘denied,’ and ‘sustained.’” Judges who violate the rule are dealt with harshly, except Justice Scalia, but not the rest of us. Take the redoubtable Federal District Judge, Penfield Jackson, who a few years ago tried the Microsoft anti-trust case. He violated the rule. For him the consequences were catastrophic.
Jackson gave secret press interviews about the case while it was pending. The interviews were later published in leading newspapers and magazines. All that publicity was heady until the Court of Appeals reversed him in a 72 page opinion. (See U.S. v Microsoft Corp. 253 F3d 34 (2001).). It was bad enough being reversed for errors of law. But the nightmare came in part VI of the opinion where the appellate court excoriated Judge Jackson for creating the appearance of partiality. Perhaps his scathing denunciations of Bill Gates and Microsoft had something to do with it.
The appellate court berated the judge for “posturing for posterity” by “trying to please reporters with colorful analogies and observations.” The per curium opinion disqualified the judge from further participation in the case for his “deliberate, repeated, egregious and flagrant” violations of the Code of Conduct for United States Judges. If only Judge Jackson had had before him on the bench this captivating sentence, “Katherine your beauty melts snow.” Behind its charming simplicity is a powerful mnemonic to remind judges of a cardinal rule--“Keep Your Big Mouth Shut.”
The judge who hears what is called a publicity case is not the celebrity. The judge is simply a referee making sure the parties are getting a fair trial. The case may be difficult and “trying” in every sense of the term, but the judge is nobody special just because he or she happens to be trying the case. But what of judges who think they have something to say, or some talent to display? Should they hang from the bars of the jungle gym with their lips sealed? Maybe not.
The Russian composer Shostakovich composed symphonies that mocked Stalin and the Soviet regime and he survived. Similarly judges off the bench can creatively express themselves and survive provided they do it with circumspection. My colleague Justice William Bedsworth writes a humorous column called “A Criminal Waste of Time.” He says his column is a safety valve that allows him “to get it out of his system.” It’s different with me. If anything, my columns' safety valve has made my life more dangerous.
If anyone wants to read some of the 140 columns I have written for the Daily Journal they can access them on my blog site,
I have gotten some hits, but no home runs.
Some judges play musical instruments in public. “Gavel to Gavel,” the Los Angeles Superior Court Judicial Magazine, shows on its cover five judges in their robes playing their instruments. Judges Aviva Bobb, Mary Thornton House, and Helen Bendix make up the violin string section, Richard Denner, on classical guitar, and Brett Klein on trumpet. My colleague Justice Steven Perren appears in musicals and sings and dances, well mostly sings, on the stage in front of people. His performances at oral argument are legendary. I play the piano, but am loath to do much playing in public because of the Judicial Canon which admonishes judges not to do anything that would reflect poorly on the judiciary. The musician judges seem to feel there is a connection between music and judging. I agree- lots of room for improvisation.
The proliferation of rules about what judges can and cannot do has created anxiety about what is appropriate behavior off the bench. At lunch the other day a colleague was concerned about whether she should order melon out of season. I opined that it would be O.K. for an appellate judge but could be dicey for a trial judge. “No,” my colleague answered, “I mean would this lapse in judgment reflect poorly on the judiciary and possibly get me in trouble with . . . ” I interrupted, “you mean . . . .” “Yes,” she whispered, her face ashen.
It was unnecessary to say more. Judges seldom talk in public about the agency that strikes fear in their hearts, the dread Commission On Judicial Performance. This is the agency that has resisted with iron tenacity the right of discovery for judges charged with misconduct. But judges can relax. The Commission that did not want judges to receive the due process safeguards accorded Saddam Hussein, relented and agreed not to oppose a rule that would give judges some discovery rights.
This takes me to my recent public performance off the bench. Please do not relate this to the Judicial Performance Commission. Once a month, writers, actors, and marginal people like myself with a story to tell, read before an audience at the Powerhouse Theater in Santa Monica. The Powerhouse is not named after a candy bar as I thought, but used to be a power station. The stories revolve around a theme. I read a story at the Powerhouse theater a few months ago, a good portion of which I had lifted from my Daily Journal Column of May 2004 on the L.A. Marathon. The theme was “Truth and Dare.” I misread the title.
I thought it was “Truth or Dare,” the title of a 1991 documentary film in black and white that chronicled Madonna’s “Blonde Ambition” tour where she firmly established her credentials as the nation’s preeminent bearable talent of the decade. She plays the game “Truth or Dare” while sprawled on a gargantuan bed with an entourage of her dancers, who like a pride of priapic pampered persnickety Pomeranians, perversely pant and plead for paltry portions of preferential penance. At the rehearsal the directors thought my penchant for alliteration detracted from my story and cut it out, including the bit about Madonna. One of the producers is just wild about Madonna.
The Daily Journal was going to cover the show and my performance. The editor herself, Katrina Dewey, was going to come, but then decided it was a good night to do her laundry. It was just as well. I had talked to Judge Scalia before I went on and he told me to confiscate any one who tried to tape my reading. I asked if he had misspoken and meant for me to confiscate the tape recorder. “That too,” he replied. So as far as I know, there is not a tape of my performance floating around for the Judicial Performance Commission to gloat over. But not to worry. If there is such a tape, the new discovery rule might give me a chance to hear it before the hearing.
I do not believe that my extra curricular activity at the Powerhouse reflected poorly on the judiciary. How could it? No one knew I was a judge, except my wife, who, at the cast party denied she had ever seen me before. And as for the people who didn’t applaud at the conclusion of my performance, I am pretty sure I can rule on their cases with complete impartiality.