Defending the judiciary
By Thomas Van Flein
As lawyers we handle other people's problems and try to resolve them. Since most of us labor under the weight of these responsibilities on a daily basis, I generally want to focus on the lighter side of the practice of law when writing here.
Sometimes there are pending issues that are of such importance, however, that they should be addressed, even if there is no humor in it. This is one of those times.
There is a political effort afoot bent on undermining our judiciary. Recent years have shown increased efforts to restrict the judicial process. Not content with relying solely on that approach, others are taking aim on certain judges.
Justice Dana Fabe and Judge Sen Tan have been targeted by one or more groups that disagree with various abortion decisions, such as Valley Hosp. Ass'n, Inc. v. Mat-Su Coalition for Choice, 948 P.2d 963 (Alaska 1997), which involved Justice Fabe at the trial court level. Judge Sen Tan ruled on a dispute involving Medicaid funding for abortions. That abortion is at the root of this discontent is not surprising, as it remains a festering political wound, not likely to heal anytime soon.
The late Robert S. Daggett wrote about similar situations in California, where efforts to unseat Judge Nancy Wieben Stock were undertaken because she awarded O.J. Simpson custody of his children. In another case, the family of a murdered boy tried to remove Judge Everett Dickey because they believed the sentence imposed was not harsh enough. The friends and family of a defendant sought to remove Judge John Darlington because he denied the defendant's motion for a new trial. Clearly these efforts to remove the judges were based on the merits of the outcome of the case pending before the judge, not on the judges' behavior or qualification for office.
My concern, and the concern of many others, are not the relative merits of either the legal or political arguments in the abortion cases. Rather, the concern is the lack of comprehension regarding the role of the judiciary and the judges who work in the third branch of government.
There is a qualitative difference between the outcome of a decision, and whether one agrees or disagrees with the reasoning therein, and an attack on the judge or court that issued the decision. It is our widely accepted ability to distinguish between the two that forms the basis of our independent judiciary. It is a bright line, but one that is blurred by those seeking to unseat judges because they disagree with the outcome of a particular decision.
That one particular decision may be in error or a particular judge may err from time to time reflects many factors, including the uncertainty and complexity of the law, the factual record before the court, and, if nothing else, the fallibility of people, even highly educated people who become judges.
For purposes of debate, we could agree an outcome or decision was in error. But even so, that would not, or should not, form the basis of a drive to remove or not retain a judge. The decision not to retain a judge should be based on whether the judge has diligently performed his or her duties, acted with the appropriate decorum, treated the parties fairly, and applied the law in a reasoned manner. Further, when we judge the judges, let us do so on the complete record and history for that judge, not on one case or one issue.
To compound matters, judges are limited in their ability to defend themselves against such attacks. As Daggett observed, "the judge faces a quandary: If the attack on the judge is focused on the decision of an isolated case (especially if the decision is then on appeal), the judge is ethically and perhaps legally prohibited from speaking out." Two groups have formed, however, to assist the judges, including Alaskans For Judge Sen Tan and Alaskans For Justice Dana Fabe. What the judges cannot say on their own behalf, presumably these groups can.
Daggett further observed that "Judges do special nonpolitical work. They need to be independent, protected from public outcry over an unpopular decision mandated by the law. Appeals belong in the appellate courts within a stable and independent legal system, not in the tumult of a contested election and the frenzied distortions which have become commonplace in today's politics."
The Los Angeles Times has editorialized that "a judge's job is to follow the law, not public opinion."
In deciding whether to retain a judge, our touchstone should be the judge's competency and qualifications, not the public opinion of those who lost a case.