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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. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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