“I miss their voices.”
— Chief Judge Jane Magnus-Stinson of the District Court for the Southern District of Indiana, on the loss of Senior Judge Larry McKinney and Magistrate Judge Denise LaRue
All of us lawyers live two lives. One is the world of daily work endeavors — cases, clients, decisions, deadlines and problem-solving. For judges, that always includes a prudent balance between understanding what the law is, remaining open and patient with each party’s position, and finding the decision. The other life of lawyers and judges is the non-legal real world, away from smartphones and computers, outside our office, and outside the courtroom where experiences of family, friends, and private interests fill our personal time.
But our dual passages are untiringly disturbed by each other. How can we draw lines between what we see and feel in each of these life spans? For example, when Justice John Paul Stevens earnestly dissented in the Citizens United case (finding corporations have First Amendment protection like individuals) he said, in part, that corporations have “no consciences, no beliefs, no feelings, no thoughts, no desires … .” Justice Stevens’ regular life informed his legal life to shape a legal conclusion. Our everyday challenges are seemingly more ordinary, but no less grand. We work every day inside our professional life, and continually wonder if those choices are affected by our regular life perspective. Judges are faced with unique and peculiar questions when applying fairness. Justice Sonia Sotomayor feels that “[p]ersonal experiences affect the facts that judges choose to see.” Subjectivity is always a wild card in courts of law.
But more importantly, the well-worn national debate about judges and subjectivity misses a significantly larger point: How do real forces, outside the courthouse, apart from any personal partiality, affect the operation of a judge’s daily work?
After the historic 2008 recession, courts faced a squeezing dilemma: on one hand, more cases; on the other hand, less money. The effects were immediate and enormous. According to a 2012 study by the Indiana University Public Policy Institute, state trial courts became strapped. In Kansas, a 10 percent budget cut forced courts to suspend prosecutions of domestic violence cases. California reductions caused a five-year delay in civil cases. Georgia cut court funding by 25 percent, and the situation deteriorated to the point that courts solicited donations of pens and pencils from corporate sponsors. Iowa cuts resulted in the judicial branch suffering a 49 percent job layoff. Although Indiana state court budgets are largely locally funded, Indiana state courts still had a 50 percent higher caseload than the national median in 2012, according to the National Center on State Courts. Judges are always used to doing more with less, but the recession of 2008 raised the question of separating society’s ills outside the courthouse from the merits of the case at hand. As parties fought to keep their homes and businesses, judges struggled to exercise consistent discretion.
Currently there are 144 vacancies in U.S. federal courts (approximately 15 percent of judgeships), including four in Indiana (not including Senior Judge Larry McKinney) and three on the Seventh Circuit Court of Appeals. There is no dispute that politics outside the courthouse has caused this logjam, and that it hurts the administration of justice for people, and judges, by denying a day in court for thousands. In 2010, an out-of-state anti-gay-marriage group campaigned successfully to unseat three Iowa supreme court justices. “What is so disturbing about this is that it really might cause judges in the future to be less willing to protect minorities out of fear that they might be voted out of office. … Something like this really does chill other judges.” University of California, Irvine School of Law Dean Erwin Chemerinsky said to the New York Times.
Over recent months, we unexpectedly lost U.S. Senior District Judge Larry McKinney and U.S. Magistrate Judge Denise LaRue. Outside the courthouse, the impact upon the judges and lawyers who practice in the Southern District of Indiana is profound. The court staffs in Indianapolis and elsewhere are shocked. Their families and friends are unspeakably grief-stricken. Inside the courthouse, judges, lawyers, and staff maintain that other professional life. But how can we do our work like it never happened? Chief Judge Magnus-Stinson hears Judge McKinney and Magistrate LaRue in her workplace, a personal loss enduring over the day that is shared by many.
As we look toward the holiday season and feel thanks for all that we do have, we lawyers and judges are also mindful of what we have to live without. Sometimes we have not the resources to do our work, or suffer outside attacks that impede our fair judgment, or lose colleagues that affect our everyday practice of law. We judges always feel fortunate to serve, solve problems of people, work in practice with attorneys, and share the journey with our brother and sister judges. But, when what’s outside the courthouse affects what’s inside, the challenges become a pathway to understanding what Newsweek’s Dahlia Lithwick means when she writes that “judges are not made of microchips, and that doing justice means more than just calling balls and strikes.” And that is why we celebrate each New Year.•
• 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.