I got another speeding ticket. Damn!--on the Pacific Coast Highway about 8 miles north of where I got my previous speeding ticket, seven years earlier. I plan to go to traffic school-- again. I wrote at length about my past traffic school experience, (euphemism for ordeal.) For those of you who have not indexed my columns of past years, it appeared in the Daily Journal May 6th (1996) The Los Angeles Times even quoted portions of it. I hope the comedy traffic school I chose this time will be funny. The earlier one did not even approach mirthful. “Tragic Traffic School” would have been a more appropriate sobriquet.
My speeding offense is deemed a “violation.” Yet, despite this odious appellation, more condemning than say “transgression,” I publicly acknowledge it. “Why?” the more inquisitive might ask. Simply to demonstrate that judges are human and subject like all mortals to those lapses that are inextricably tied to the human condition. In fact I am planning to write an enlightening book titled, “Judges are Human.” Publishers lack interest. They tell me people do not read that much fiction these days.
People have traditionally thought of judges as abstractions, devoid of emotion, curiosity or passion, bloodlessly applying the law. Perhaps that is why Judge Judy and her imitators are so popular. However obnoxious, rude, and undignified these television judges are, they at least register a heartbeat if not a racing pulse, as evidenced by the tongue lashings they administer to the hapless litigants who appear before them. The unflattering image these judges bring to a large segment of the daytime watching television audience has caused real judges to recoil and double their efforts to be as nondescript as possible.
Some judges work at cultivating a demeanor that is cold and aloof. It is supposed to reflect the absence of passion or emotion that could cloud the intellect and skew a decision. This notion of judging may leave some wondering just how justice is supposed to flourish in this antiseptic climate. But cannot a judge be dignified, fair and impartial and also be and appear human?
Of course to be human is also to err. And judges do that. Just read the advance sheets. And there are errors in judgment however human that judges simply are not allowed to make. Take for example the recent contretemps over private judging. I am not talking about what some complain is a separate system of judging for the rich. I can understand the desire of a judge to retire to smell green backs instead of red roses. Of course if the market for the judge’s services is wanting, smell gives way to the taste of sour grapes. For private judges unlike public ones, it is important to let the consumers know you are available. No doubt that explains why so many private judges show up at bar functions. It also explains why many private judges advertise their services. Yes, there is the argument that no matter how tasteful the ad, endorsements in elite italics, and Visa and Mastercard logos unobtrusively placed in a bottom corner, it is still unseemly. Maybe so, but as I said, judges are human and what’s wrong with making some money and supplying a service to willing parties?
But it gets dicey when the retired judge for hire also sits on assignment as a public judge. Some perceive that a sitting public judge carries a status that fails to attach to a retired judge. Retired judges recently learned that you cannot have your cachet and eat it. The Chief Justice has promulgated a new policy that prevents private judges from sitting on assignment. They must choose between cash and cachet. There is no question that the judges sitting on assignment render a valuable service and their integrity is beyond question, but as the Chief said as reported in the Los Angeles Times, “the public might think judges with private business could favor litigants who are potential future clients.” He is right. Being public and private is like trying to play in a major and minor key at the same time. It doesn’t work and the tune does not sound good. It is human to legitimately seek more money, but the sensible rule promulgated by the Chief requires judges to choose between cash and cachet.
But too heightened a concern about judges acting like human beings can set off false alarms that weaken the judiciary. Take for example the recent furor over the epistolary exchange between 9th Circuit Court of Appeals judge Alex Kozinski and a San Quentin lifer convicted of murder. The inmate, who was once on death row, and Judge Kozinski have one thing in common. They are both talented writers. As reported in the Los Agneles Times on February 16, 2003, the correspondence began when the inmate wrote Kozinski about an article Kozinski wrote in the New Yorker favoring the death penalty. Kozinski even paid the inmate a visit when he toured San Quentin. Kozinski has said that some of his opinions were preceded by 50 drafts. I can assure you none were sent to his prison pen pal for editing.
A philosophical exchange between the judge and the convict about the death penalty has prompted the state Attorney General’s Office to conduct an investigation and request that Judge Kozinski does not hear California death penalty cases. Please. I don’t always agree with him, but Judge Kozinski is one of the most talented, intellectual, and interesting judges to sit on any court. His sin is having an inquiring mind. Curiosity may be lethal to cats, but should not be injurious to judges.
The prosecutors are unnerved. They are concerned that this brilliant jurist might he less supportive of the death penalty because he corresponded with and visited an inmate who for a time was on death row. Horrors. Judge Kozinski attributes the prosecutor’s discomfort to the recognition that it is easier to dispose of death penalty cases “if you don’t think of them (the defendants) as human beings.” But the jurist who recognizes that judges and litigants are human, evidences an awareness of the awesome responsibility that judging carries. Judge Kozinski’s recognition of this truth, together with his formidable and wide ranging intellect, make him an ideal judge. So what is there to investigate? Judge Kozinski has not ruled on any matter involving the inmate at San Quentin nor would he. As far as anyone can determine he is still an outspoken proponent of the death penalty.
Prosecutors can relax. A “human” judge does not mean ignore judicial ethics or decide cases strictly on emotion. Nor does it mean that all human behavior is appropriate for a judge. I merely suggest that because judges are human beings, they should not be ashamed to act like one. I will leave to you dear reader to decide whether this discussion relates to the judges on the 8th Circuit who upheld the procedure in Arkansas of forcing an insane prisoner to take antipsychotic drugs so that he would be “sane” when the state imposed the death penalty.
The reticence to reveal anything about one’s self, does not bode well for those who aspire to the bench. Miguel Estrada, President Bush’s nominee to the U.S. Circuit Court of Appeals for the District of Columbia did not answer questions put to him by the Senate Judiciary Committee. The committee has a legitimate interest, indeed an obligation to know something about Estrada the human being, about Estrada’s judicial philosophy. He ran into opposition, not because of his views, but because no one knows what they are. I am not sure if the administration is concerned that Estrada may be too conservative for a majority of the judiciary committee, but I bet Estrada would have fared better if he revealed himself to the committee as a human being instead of a cipher.
A judge should be disinterested. Note, I did not say uninterested. A judge can be human, can have strong political and philosophical views, and still be disinterested. Disinterested means neutral, unbiased, objective, even handed. A disinterested judge is engaged in all aspects of a case from its legal intricacies to its human elements and fulfills the judge’s obligations to the parties and to society. Some judges are preoccupied with statistics and view the administration of justice as a race to see who can dispose of the most cases in any given stretch of time. The focus is on statistics, and at the end of the day, success is measured by how many cases are decided. By contrast, a disinterested judge works efficiently, but is primarily concerned with how a case is decided. That is the mark of a judge who is human.
I could go on, but I have to bone up for traffic school. At the end of the day they give you a test on the vehicle code. I know it’s human to miss a question or two, but imagine how embarrassing it is for a judge not to get a