I have enjoyed this year’s monthly Bar Association lunches. The food has been good, the location is great, and turn out by both the Bench and Bar has been high. I am particularly pleased by the quality of the speakers that have taken time to visit with us over lunch. There is no Bar lunch in June, and I have had time to reflect on some of what was said by our speakers. In particular, I am interested in comments made to us by Judge Hoffman of the Denver District Court, and Judge Ebel of the Tenth Circuit Court of Appeals. Their comments relate to the art of judging, why the judicial branch is so different from the other branches of government, and the duty of the Bar to speak out on behalf of the judiciary and judicial independence.
In discussing judicial activism, Judge Hoffman argued that it is the “process” not the “outcome” that is the province of judges and judging, and that judges must never substitute their view of what is “good” or “right” for that of the legislature: the branch of government in charge of policy making. To emphasize his point, Judge Hoffman spoke of attending a judicial conference where he had lunch with a newly appointed trial judge. The new judge told Judge Hoffman that after a few weeks on the bench she felt like she had “finally done some good.” The Judge was displeased by this statement since, in his opinion, such judgments or actions are or should be outside the judicial role or function.
Judge Ebel gave a scholarly talk about the “Separation of Powers,” the topic the American Bar Association suggested for Law Day. In the course of his speech Judge Ebel suggested that the public improperly perceives the judiciary as just another political branch of government. Judge Ebel coupled this observation with a plea to the Bar to speak out and defend the judiciary from attack.
In large part I agree with the comments of both Judge Hoffman and Judge Ebel. I trust our judges to call balls and strikes. However, like Judge Hoffman, I am not particularly comfortable when judges substitute their view of “good” or “right” for the view expressed by the legislature in its statutes, or when a judge decides to do what he or she thinks is “best” regardless of the law or the provisions of the contract between the parties.
A judge, like an umpire in a baseball game, must focus not on winning or losing but on application of the rules or statutes to the game or case. When we say that an umpire or official has “called a good game,” we mean that he or she faithfully applied the rules. We imply nothing about who won or lost. In fact, implicit in this statement is praise to the official for not favoring one side or the other.
The same is true in the law. While a judge who applies that law as written may be criticized for being heartless on the one-hand, or overly generous on the other, in actuality he or she cannot be faulted for doing anything other than applying the policies and political judgments codified by the legislature.
At the same time, I recognize the need now more than ever, to protect our bench from unwarranted and meritless criticism, or worst of all, unthinking attacks. As Judge Ebel explained, because the bench may not speak out in response to its critics, members of the Bar are obligated to defend our judges, protect their independence and explain to the public what makes the judiciary different from the other two branches of government.
The comments of Judges Hoffman and Ebel lead me to ask myself two questions: (1) What is the Bar entitled to expect from our Bench? and (2) What should the Bench expect from our Bar? I attempt to answer the first question in this article. The second will be the subject of my July article.
What follows is my list in rough order of importance to me of what I believe the Bar can and should expect from our Bench. By undertaking this exercise, I do not intend to imply that anyone on our Bench is not doing the things listed below or not doing them well. I survived writing two articles which suggested making modest changes to how we handle civil matters, and I suspect I can survive writing about (not criticizing) our judiciary. If it is any consolation to my colleagues on the Bench, they should know that my preliminary list of expectations for next month’s article is longer than what is set forth below.
Members of our Bar expect the following from our Bench:
Those are my thoughts. Hopefully I have not offended too many people. My list may overstate what the Bar expects from the Bench; on the other hand, it may not. I encourage feedback from both the Bench and Bar and have been assured that we have room in The Pikes Peak Lawyer to print letters or responses to anything I have said in this article.
Next month I will attempt to answer the question: What should the Bench expect from our Bar?
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