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Indiana Judges Association: Judging from the mountaintop

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IJA-Dreyer-DavidI have a confession to make. I have always been fond of the wigs that English judges wear. What better way to define the role and independence of the judiciary than to appear oddly physically different? Of course, all British barristers wear wigs, but judges’ wigs are a lot larger, grander and more regal. If judges wore wigs in the United States, there might be a marked increase, I say, in public confidence in our courts. Hopefully, it would not be outweighed by any marked increase in public satire, but it could not be any worse than the judge shows now on daytime TV. The public always needs to understand that courts are serious and judges are different. More importantly, it is necessary to understand why.

We hear a lot these days about “judicial independence,” and how we should pick who our judges are. On one hand, all of us lawyers understand the significance of keeping courts free from outside pressure – from legislatures, other elected officials, and special interests – and ensuring a process that at least appears fair. On the other hand, Americans are suspicious of any power not accountable to the people. According to Federal Judicial Center researchers, this dilemma is as old as the Union. “A belief in judicial independence exists in the United States alongside an equally strong belief in democratic accountability. … Judicial independence means different things to different people. … It is perhaps most important in enabling judges to protect individual rights even in the face of popular opposition.”

But if judges should be “independent,” does that mean they are somehow more special than other people? Politics makes strange bedfellows, but judges cannot even flirt. So, other government branches sometimes see judges as arrogant, aloof or too powerful. In Michigan, for example, legislators have sought to transfer jurisdiction of all lawsuits against the state to its Court of Appeals where more political pressure can presumably be applied. The little secret about judges is that they are no different than anybody, although required to make weighty decisions about everybody. A Broadway play called “The Mountaintop,” is now coming to the rest of the country, including Indianapolis. It is an unsettling portrayal of Dr. Martin Luther King Jr. as a real, conflicted, flawed person, not the historical social justice hero. It means to irk the audience into realizing how the courage to act, and the difficulty, is the same for all of us, no matter who we are.

Yes, I am a person just like anybody else, but my job declares that I am different. Ever since I have been a lawyer, people often treat me apart from others. When I became a judge almost 18 years ago, some of my best friends insisted on calling me “Judge” because they now felt funny calling me “Dave.” Judges are colleagues of fellow attorneys, not supervisors, although judges have a unique obligation and responsibility to run the system. Temper and toughness are not a natural part of my personality. But even I have decided to yell at attorneys (on rare occasion) because it was required to maintain order, professionalism, fairness and enforce the law.

Hence, my attraction to the English wigs. The separation between me and my judicial role would be much easier to manage. I would be seen as the guy with a funny wig, not Dave who made an unpopular call. Since England already uses wigs to define judicial work, what should American judges wear? Here is a list and some thoughts:

• The helmet of the court’s closest National League Football team. Since the NFL is the most lucrative athletic organization in world history, this would probably draw unwanted claims of corporate compromise.

• Baseball cap turned backwards. Although this is an attractive option to inspire the Millennial generation to believe in our legal system, it is probably a net loss of confidence among the general population.

• Bishops miter. Besides risking First Amendment issues regarding religion, it would just look too funny.

• Construction worker hardhat. Considering what judges do in the courtroom, this is clearly the most logical, but may not be taken seriously.

• A tasteful mask. Keeping one’s face hidden may create a good image and an accurate depiction of a truly independent judge. But how would we know what judges are thinking, are they bored, are they amused, are they getting it?

“Judicial independence,” Justice Stephen Breyer once said, “is in part a state of mind, a matter of expectation, habit, and belief among not just judges, lawyers, and legislators, but millions of people.” A 1996 Harris poll showed 84 percent of U.S. citizens are against political influence in court cases. That would indeed total millions of people. The challenge of judges is to rule from the mountaintop, but never leave the village. Only when judges are invisible can there be true judicial independence. In the meantime, what matters is the process – and the goodwill of our profession to keep trying.•

__________

Judge David J. Dreyer has been a judge for the Marion Superior Court since 1997. He is a graduate of the University of Notre Dame and Notre Dame Law School. He is a former board member of the Indiana Judges Association. The opinions expressed are those of the author.

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  1. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

  2. If justice is not found in a court room, it's time to clean house!!! Even judges are accountable to a higher Judge!!!

  3. The small claims system, based on my recent and current usage of it, is not exactly a shining example of justice prevailing. The system appears slow and clunky and people involved seem uninterested in actually serving justice within a reasonable time frame. Any improvement in accountability and performance would gain a vote from me. Speaking of voting, what do the people know about judges and justice from the bench perspective. I think they have a tendency to "vote" for judges based on party affiliation or name coolness factor (like Stoner, for example!). I don't know what to do in my current situation other than grin and bear it, but my case is an example of things working neither smoothly, effectively nor expeditiously. After this experience I'd pay more to have the higher courts hear the case -- if I had the money. Oh the conundrum.

  4. My dear Smith, I was beginning to fear, from your absense, that some Obrien of the Nanny State had you in Room 101. So glad to see you back and speaking truth to power, old chum.

  5. here is one from Reason magazine. these are not my words, but they are legitimate concerns. http://reason.com/blog/2010/03/03/fearmongering-at-the-splc quote: "The Southern Poverty Law Center, which would paint a box of Wheaties as an extremist threat if it thought that would help it raise funds, has issued a new "intelligence report" announcing that "an astonishing 363 new Patriot groups appeared in 2009, with the totals going from 149 groups (including 42 militias) to 512 (127 of them militias) -- a 244% jump." To illustrate how dangerous these groups are, the Center cites some recent arrests of right-wing figures for planning or carrying out violent attacks. But it doesn't demonstrate that any of the arrestees were a part of the Patriot milieu, and indeed it includes some cases involving racist skinheads, who are another movement entirely. As far as the SPLC is concerned, though, skinheads and Birchers and Glenn Beck fans are all tied together in one big ball of scary. The group delights in finding tenuous ties between the tendencies it tracks, then describing its discoveries in as ominous a tone as possible." --- I wonder if all the republicans that belong to the ISBA would like to know who and why this outfit was called upon to receive such accolades. I remember when they were off calling Trent Lott a bigot too. Preposterous that this man was brought to an overwhelmingly republican state to speak. This is a nakedly partisan institution and it was a seriously bad choice.

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