“THE JUDICIAL BRANCH OF GOVERNMENT” (48)
Unfortunately in our world today, few people give much thought or have much knowledge about how we judges obtain our positions, what we actually do, or the ethical rules that we follow. So this week’s column will focus upon the Judiciary, which is one of our three equal branches of government.
In our country we basically have two judicial systems, which are federal and state. The federal courts try cases under the federal constitution and statutes, as well as resolve disputes among residents of different states that have an amount at issue of $75,000 or more. The federal district courts are the trial courts. Appeals from the trial courts go to the Circuit Courts of Appeal, and then to the United States Supreme Court. But with only a few exceptions, the Supreme Court can choose what cases it wants to hear and decide.
There are only two qualifications that are required to become a federal judge at any of these three levels: be appointed by the President, and confirmed by the Senate. That’s all. And federal judges are appointed for life. One does not have to be an attorney, a citizen or even an adult to become a federal judge. Of course, the chances that someone would be appointed by the President and confirmed by the Senate without meeting at least those minimal qualifications would be remote, but they are still not required.
For the most part, the state courts follow the same system, although they have different names for the different levels of courts. In California, the Superior Court is the trial court level. Formerly the Municipal Courts tried criminal misdemeanors and civil cases that involved claims of $25,000 or less, and the Superior Courts handled the felonies and civil cases in excess of $25,000. But these courts were consolidated several years ago into one Superior Court.
Judges of the Superior Court must reside in the county in which they sit, have been licensed to practice law for at least ten years, and be an attorney in good standing. And they must be elected by the voters to a six-year term. Nevertheless, about 90 percent of the judges of the Superior Court originally obtain their position by being appointed by the Governor to a seat that has been vacated either by death, retirement or elevation to a higher judicial position. Once the appointment is made, however, those judges are required to run for their seat in the next election. But as a practical matter, since those judges are able to run as incumbents, they are seldom defeated.
Appellate justices in California are appointed by the Governor, and then confirmed by a small commission consisting of a few judicial and political officers. They are also subject to a re-election process, but it is different in that they are required to run every twelve years in “retention elections.” That means that, although each one is on the ballot, the people simply vote whether or not to retain the justice for another term.
Not only must judges do everything in their power reasonably to apply the law to the facts of the case in reaching their decisions, but it must also appear to everyone concerned that this is what is happening. That means that the search for justice is both a process as well as a result.
In this regard, one of the most important aspects of obtaining justice is both the actual as well as the perceived neutrality of the judiciary. As an illustration, I remember one time seeing a cartoon that showed a cat as a plaintiff in a case in which the defendant, the judge and the jury were all dogs. Obviously, even if a just decision were rendered in the case, if the cat lost, it would be a difficult matter to persuade the cat of the fairness and impartiality of the result.
Another equally critical aspect of seeking justice is maintaining the independence of the judiciary. For example, the former Soviet Union was notorious for situations in which, before judgments were rendered, the judges telephoned their political leaders in order to determine what the “right” decision would be.
That is probably an extreme example, but in our country today political parties are now allowed to endorse judicial candidates, even though the elections are supposed to be non-partisan. That means that judicial elections are increasingly political, and judges who might be involved in highly visible and politically charged cases can at the same time be up for re-election. Under those circumstances it is hard for any human being to ignore existing political realities in reaching a judicial decision. One former justice of the California Supreme Court analogized this situation to trying to ignore a crocodile that is swimming in your bathtub. No matter what happens and no matter what you do, you still know it’s there. But one way or the other, that is what all judges simply must do.
This situation can also call up the scary scenario of John Grisham’s book “The Appeal,” in which a wealthy company with an important appeal pending could find judicial candidates for appellate positions and help get them elected so that they could sit in judgment on that appeal. Of course, no system is perfect, but politicizing judicial elections is a development fraught with peril.
In our judicial role, we attempt to fulfill the critical requirement of providing justice under the law to a multitude of diverse people and interests in a world of shrinking resources. If you think about it, both the Executive and Legislative Branches are established to respond to the interests of the majority, because those are the people that elect them. Consequently, that leaves only the Judicial Branch of government to defend minority rights and sometimes to make the hard and unpopular decisions under our laws.
As such, and in a very real way, judges are in the dissatisfaction distribution business. But this role is critical if we are to have a functional and civilized society, and to maintain our way of life as we know it. So in carrying out our role, we need all of the help, assistance and understanding that we can get as we attempt to pursue the concept as well as the reality of equal justice for all under the law.
James P. Gray is a judge of the Orange County Superior Court, the author of Wearing the Robe - the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2008), and can be contacted at JimPGray@sbcglobal.net or at his blog at JudgeJimGray.JudgeJimGray.com.