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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. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

  2. I agree. My husband has almost the exact same situation. Age states and all.

  3. Thanks Jim. We surprised ourselves with the first album, so we did a second one. We are releasing it 6/30/17 at the HiFi. The reviews so far are amazing! www.itsjustcraig.com Skope Mag: It’s Just Craig offers a warm intimacy with the tender folk of “Dark Corners”. Rather lovely in execution, It’s Just Craig opts for a full, rich sound. Quite ornate instrumentally, the songs unfurl with such grace and style. Everything about the album feels real and fully lived. By far the highlight of the album are the soft smooth reassuring vocals whose highly articulate lyrics have a dreamy quality to them. Stories emerge out of these small snapshots of reflective moments.... A wide variety of styles are utilized, with folk anchoring it but allowing for chamber pop, soundtrack work, and found electronics filtering their way into the mix. Without a word, It’s Just Craig sets the tone of the album with the warble of “Intro”. From there things get truly started with the hush of “Go”. Building up into a great structure, “Go” has a kindness to it. Organs glisten in the distance on the fragile textures of “Alone” whose light melody adds to the song’s gorgeousness. A wonderful bloom of color defines the spaciousness of “Captain”. Infectious grooves take hold on the otherworldly origins of “Goodnight” with precise drum work giving the song a jazzy feeling. Hazy to its very core is the tragedy of “Leaving Now”. By far the highlight of the album comes with the closing impassioned “Thirty-Nine” where many layers of sound work together possessing a poetic quality.

  4. Andrew, if what you report is true, then it certainly is newsworthy. If what you report is false, then it certainly is newsworthy. Any journalists reading along??? And that same Coordinator blew me up real good as well, even destroying evidence to get the ordered wetwork done. There is a story here, if any have the moxie to go for it. Search ADA here for just some of my experiences with the court's junk yard dog. https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert Yep, drive by shootings. The lawyers of the Old Dominion got that right. Career executions lacking any real semblance of due process. It is the ISC way ... under the bad shepard's leadership ... and a compliant, silent, boot-licking fifth estate.

  5. Journalism may just be asleep. I pray this editorial is more than just a passing toss and turn. Indiana's old boy system of ruling over attorneys is cultish. Unmask them oh guardians of democracy.

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