Sober as a judge. One of the greatest compliments one can bestow on another grown-up. We have great expectations for those we trust as judges. This is especially true in districts where judges serve for life as in the Supreme Court, federal courts and in Hawaii state courts.
When we bestow a lifetime position of power we better be sure what we wish for because we are going to get it. A judge must be beyond reproach. That is a difficult standard, but in 230 years we have been reasonably successful in our selections. Federal judges are appointed by the president and confirmed by the Senate. Only 14 out of thousands of appointees have been impeached over the course of American history. Charges range from drunkenness on the bench to accepting bribes. The first impeachment was in 1803 and the most recent was in 2010. Eight of the jurists were convicted by the Senate and removed from office, while three were acquitted and three resigned. Only Abe Fortas was ever removed from the Supreme Court.
This rate of success shows that the process is particularly effective. Normally, the president is presented with lists of candidates already vetted by qualified others. They might not be apolitical. The nominees may have a history of inclination, but they have all come into the process with an outstanding record.
One rejectee in our lifetime was Ronald Reagan appointee Robert Bork. The controversial Bork was not confirmed by the Senate, Reagan appointed Anthony Kennedy who “virtually sailed through the confirmation process and was widely viewed by conservatives and liberals alike as balanced and fair.” He served with distinction and became known as the swing vote for his lack of bias. Reagan to his credit did not put the country through a second Borking.
I was disqualified for jury duty by a California judge who asked the jurors if any of them belonged to an organization that advocates the legalization of drugs? I did. Then I understood. California judges have to run for reelection, regularly. To be reelected they have to be tough on crime. That becomes more important than fair and unbiased. Pennsylvania had a system that allowed sitting judges to register with both parties when due for reelection. That made them less vulnerable to political opposition.
It is hard to understand wealth and privilege when you are born to it. You don’t have the experience to empathize with those who got what they have by working for it. You don’t know what it’s like to have to decide which bill to not pay this month, knowing there will be late charges next time, or a thousand other indignities that come from having almost enough to get by.
Whether appointed for life, or not, judges experience a bit of that same privilege. In court, one never hears a lawyer openly correct a judge. It’s more like, “Your Honor, maybe I did not explain myself clearly.” or “Perhaps I misunderstood.” Within the courtroom a judge has absolute power. He can fine, gag, manacle, jail or bar from the court an unruly, or disrespectful, person on the spot. There is no appeal.
A judge’s greatest day to day concern is having a decision overturned by a higher court; that is not a face to face confrontation like cross examination. It is written opinion issued months later based on the largely invisible appeals court review of a transcript. Many important decisions are made at the appellate level and not noticed unless they reverse the judge or go to the Supreme Court.
We trust our judges not to abuse this unlimited discretion and almost all of them do the right thing almost all of the time. A judge that abuses this power can expect to read about it, tomorrow and tomorrow and … With judges there are a few characteristic we cannot tolerate even the appearance of: drunk, corrupt and dishonest.
Ken Obenski is a forensic engineer, now safety and freedom advocate in South Kona. He writes a biweekly column for West Hawaii Today. Email obenskik@gmail.com.