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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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