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Arrogance and bullying by individual judges expose the
judicial branch to the citizens' justifiable contempt.
The judiciary can only gain from being able to limit
the occasions for such contempt.
McBryde v. Committee to Review Circuit Council
Conduct, 264 F.3d 52, 55 (D.C. Cir. 2001)
Lawless judicial conduct -- the administration, in disregard of the law, of a personal brand of
justice in which the judge becomes a law unto himself -- is as threatening to the concept of
government under law as is the loss of judicial independence.
In re Ross, 428 A.2d 858, 861 (Me. 1981).
The major cause of the loss of public confidence in the American judiciary, however, is the
failure of judges to comply with established professional norms, including rules of conduct
specifically prescribed. In brief, it is the unethical conduct of judges, both on and off
the bench, that most concerns the citizenry.
—Roger J. Miner,
Judicial Ethics In the Twenty-First Century: Tracing the
Trends,
32 Hofstra L. Rev.
1107, 1108 (2004)
"To avoid an
arbitrary discretion in the courts, it is indispensable that
[judges] should be bound down by strict rules and
precedents, which serve to define and point out their duty
in every particular case that comes before them"
—Alexander
Hamilton, The Federalist No. 78.
"When plunder
becomes a way of life for a group of men living together in
a society, they create for themselves in the course of time,
a legal system that authorizes it and a moral code that
glorifies it.”
—Frederic Bastiat,
1850
"Decency,
security, and liberty alike demand that government officials
shall be subjected to the same rules of conduct that are
commands to the citizen. In a government of laws, existence
of the government will be imperiled if it fails to observe
the law scrupulously. Our government is the potent, the
omnipresent teacher. For good or for ill, it teaches the
whole people by its example."
Olmstead v. United
States, --- U.S. 438 (1928) (Brandeis, J., dissenting).
The ordinary
administration of criminal and civil justice . . .
contributes, more than any other circumstance, to impressing
upon the minds of the people affection, esteem, and
reverence towards the government.
—Alexander
Hamilton, The Federalist, No. 17 (1787)
"There can be no
office in which the sense of . responsibility is more
necessary than in that of a judge; especially of those
judges who pass, in the last resort, on the lives, liberty,
and property of every man . . . The judiciary power, on the
other hand, acts directly on individuals. The injured may
suffer without sympathy or the hope of redress. The last
hope of the innocent, under accusation and in distress, is
in the integrity of his judges. If this fail, all fails; and
there is no remedy on this side the bar of Heaven" Daniel
Webster, The Writings and Speeches of Daniel Webster
(Little, Brown, & Co., 1851), Vol. III, pp. 6-7.
Take all the robes of all
the good judges that have ever lived on the face of the earth and
they would not be large enough to cover the iniquity of one corrupt
judge.
-Henry Ward Beecher (1887)
"J.A.I.L. 4 Judges. This
topic deserves more attention. Why should a citizen group really
attack the judiciary? Fred Rogers assumes the judiciary is faultless
in its relations with citizens who appear in court. Any of us who
have been with clients that have spent over $100,000 of hard earned
money, flown witnesses into town to stand 2nd or 3rd in line at
trial date can tell you that judiciary innocents is a myth. Fred
Rogers should walk the halls at Denver County Court between 7:00 am
and 11:00 am and see if citizens are treated with dignity. I don't
suggest Arapahoe since that would really blow Fred's sock's off. Why
don't we, as a bar association and officers of the court look into
'quality of service' that our court system offers the community?"
-comment by Gary Tucker, Esq., appearing in a 2006 issue of the
First Judicial District Newsletter.
The judiciary, from the
nature of its functions, wil always be the least dangerous to the
political rights of the Constitution; because it will be least in a
capacity to annoy or injure them. The Executive branch not only
dispenses the honors, but holds the sword of the community. The
legislature not only commands the purse, but prescribes the rules by
which the duties and rights of every citizen are to be regulated.
The judiciary, on the contrary, has no influence over either the
sword or the purse; no direction either of the strength or of the
wealth of the society; and can take no active resolution whatever.
It may truly be said to have neither force nor will, but merely
judgment; and must ultimately depend upon the aid of the executive
arm even for the efficacy of its judgments.
- Alexander Hamilton,
The Federalist No. 78
"The petitioners' brief
speaks of 'an aura of deism which surrounds the bench . . .
essential to the maintenance of respect for the judicial
institution.' Though the rhetoric may be overblown, I do not quarrel
with it. But if aura there be, it is hardly protected by exonerating
from liability such lawless conduct as took place here. And if
intimidation would serve to deter its recurrence, that would surely
be in the public interest." Stump v. Sparkman, 435 U.S. 349
(1978) (Justice Potter Stewart, dissenting)
"Of all government
officials, judges, in particular, are well-respected and largely
viewed as models of fidelity and integrity. They often seem like the
last bulwark standing athwart the hordes of unprincipled pols, who
would betray the Constitution at the first sign of a campaign
contribution. . . In Taking
the Constitution Away from the Courts,
Professor Mark Tushnet takes on
America's favorite branch. Perhaps, the brightest star in a movement
that seems to have fizzled out, Tushnet is particularly well-suited
to play the lone child, who bares to the bewildered populace the
truth about their judicial emperors." -Saikrishna B. Prakash,
America's Aristocracy, The Yale Law Journal, Vol. 109, No. 3
(Dec., 1999), pp. 541-585 (book review of Mark Tushnet, Taking
the Constitution Away from the Courts (1999))
The Imperial Judiciary lives. It is instructive to compare this
Nietzschean vision of us unelected, life-tenured judges - leading a
Volk who will be "tested by following," and whose very "belief in
themselves" is mystically bound up in their "understanding" of a
Court that "speak[s] before all others for their constitutional
ideals" - with the somewhat more modest role envisioned for these
lawyers by the Founders.
"The judiciary . . . has . . . no direction either of the
strength or of the wealth of the society, and can take no active
resolution whatever. It may truly be said to have neither Force
nor Will, but merely judgment. . . ." The Federalist No.
78, pp. 393-394 (G. Wills ed. 1982).
Or, again, to compare this ecstasy of a Supreme Court in which there
is, especially on controversial matters, no
[505
U.S. 833, 997] shadow of
change or hint of alteration ("There is a limit to the amount of
error that can plausibly be imputed to prior Courts," ante, at 866),
with the more democratic views of a more humble man:
"[T]he candid citizen must confess that, if the policy of the
Government upon vital questions affecting the whole people is to
be irrevocably fixed by decisions of the Supreme Court, . . .
the people will have ceased to be their own rulers, having to
that extent practically resigned their Government into the hands
of that eminent tribunal." A. Lincoln, First Inaugural Address
(Mar. 4, 1861), reprinted in Inaugural Addresses of the
Presidents of the United States, S. Doc. No. 101-10, p. 139
(1989).
It is
particularly difficult, in the circumstances of the present
decision, to sit still for the Court's lengthy lecture upon the
virtues of "constancy," ante, at 868, of "remain[ing] steadfast,"
ibid.;,, and adhering to "principle," ante, passim.
-Scalia
dissent in Casey v. Planned
Parenthood
"It is
sad comment that the public is so uneducated, unconcerned and
blinded to the TRUTH by the media, and that the Judiciary of our
once great Nation has been allowed to sink to these depths. And
while I say that the conditions that exist today can be laid at one
doorstep, that of the Judiciary, I must ultimately say that the
fault really lies at our feet, We the People, for it is We the
People who have allowed the foxes to guard the henhouse."
-Robert H.
Bork, Judge, Supreme Court Nominee & Professor of Law
A judicial selection process that often results in bumbling
candidates being chosen. A judicial oversight process that rarely
punishes judges for even flagrant misconduct on the bench. Put
those together, and what do you get? A breeding ground for a
disease I call "gavelitis."
This dread disease can be caused by wielding a gavel in the line of
duty, and its symptoms include advanced pomposity, pathological
sanctimoniousness, congenital self-importance, and aggravated
eccentricity. Judges suffer from this disease grow so arrogant, so
out of touch, so remote from everyday life that they think the
normal rules of good behavior and human decency don't apply to them.
Its not hard to understand how judges can fall prey to this malady.
After all, when you wear a black robe, everyone--staff, litigants,
even haughty maitre d's-- bows and scrapes and genuflects before
you. All your witticisms are suddenly hilarious, all your
observations astute, all your suggestions readily adopted. Your
fellow man invariably addresses you as "Your Honor" or "Judge."
Nobody's ever mean to you and if they are, why, you can lock them
up.
You think, How unusual ... How wonderful ... How fitting.
That kind of obsequiousness is heady stuff in our rude, egalitarian
society.
-from Los Angeles Times columnist Max Boot's 1998 book, Out of
Order: Arrogance, Corruption and Incompetence on the Bench (New
York Basic Books, 1998), 25-26.
The germ of destruction of our
nation is in the power of the judiciary, an irresponsible body -
working like gravity by night and by day, gaining a little today and
a little tomorrow, and advancing its noiseless step like a thief
over the field of jurisdiction, until all shall render powerless the
checks of one branch over the other and will become as venal and
oppressive as the government from which we separated
-Thomas
Jefferson, 1821
"The judiciary of the United States is the subtle corps of sappers
and miners constantly working under ground to undermine the
foundations of our confederated fabric. They are construing our
constitution from a coordination of a general and special government
to a general and supreme one alone. This will lay all things at
their feet."
-Thomas Jefferson To T. Ritchie, 1820
The constitution, on this hypothesis, is a mere thing of wax in the
hands of the judiciary, which they may twist and shape into any form
they please. It should be remembered, as an axiom of eternal truth
in politics, that whatever power in any government is independent,
is absolute also; in theory only, at first, while the spirit of the
people is up, but in practice, as fast as that relaxes.
Independence can be trusted nowhere but with the people in mass.
They are inherently independent of all but moral law.
-Thomas
Jefferson, letter to Judge Spencer Roane, September 6, 1819.
It is the people and not the judges who are entitled to say what the
Constitution means, for the Constitution is theirs, it belongs to
them and not to their servants in office.
-Teddy Roosevelt
Four things belong to a judge: to hear courteously, to answer
wisely, to consider soberly and to decide impartially.
-Socrates
"... ours is a sick profession
marked by incompetence, lack of training, misconduct and bad
manners. Ineptness, bungling, malpractice, and bad ethics can be
observed in court houses all over this country every day ... these
incompetents have a seeming unawareness of the fundamental ethics of
the profession. ... the harsh truth is that ... we may well be on
our way to a society, overrun by hordes of lawyers, hungry as
locusts, and brigades of judges in numbers never before
contemplated."
-Chief Justice of the United States Warren Burger,
speaking to the American College of Trial Lawyers and quoted in
Time, 27 June 1977
"Power is the great evil with which
we are contending. We have divided power between three branches of
government and erected checks and balances to prevent abuse of
power. However where is the check on the power of the judiciary? If
we fail to check the power of the judiciary, I predict that we will
eventually live under judicial tyranny."
-Patrick Henry
In
1907, while Governor of New York, eventual Chief Justice of the
Supreme Court, Charles Evans Hughes proclaimed, "... the
Constitution is what the judges say it is."
"What secret knowledge, one must
wonder, is breathed into lawyers when they become Justices of this
[Supreme] Court, that enables them to discern that a practice which
the text of the Constitution does not clearly proscribe, and which
our people have regarded as constitutional for 200 years, is in fact
unconstitutional? . . . Day by day, case by case, [the Court] is
busy designing a Constitution for a country I do not recognize."
Board of County Commissioners, Wabaunsee County v. Umbehr, 116
S.Ct. 2342 (1996) & O'Hare Truck Service v. Northlake, 116
S.Ct. 2353 (Scalia dissenting at 2363).
I speak not because the Chancellor is in a cloud, but according to liberty of a
true subject. A corrupt Judge is the grievance of grievances.
--The Lion and
the Throne Pg. 426
He [Sir Edward Coke] asserted that a corrupt judge was the greatest of all
grievances and harmed the commonwealth more than anyone else because he made
every subject a tenant at will for his rights.
--Stephen D. White, Sir Edward Coke and "The Grievances of the Commonwealth, " 1621-1628 54 (1979).
back to Judicial Disciplinary Commission page
last updated:
09/24/2008
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