Judging Without Fear Or Favor

Personal relationships notwithstanding, the life of a judge is of no greater inherent value than the life of anyone else. It’s sad to learn of a judge’s untimely passing, whether from COVID or a car accident, It’s sad to learn of a judge’s passing from natural causes. It’s the same sadness that does, or should, apply to the loss of any human life. But as United States District Judge Esther Salas writes, there is an additional concern when someone, litigant or lawyer, targets a judge for harm.

Then the doorbell rang. Daniel raced up the stairs. Seconds later, as I stood alone in our basement, my beloved son was shot to death. Mark Anderl, my husband of 25 years, was shot three times and critically injured.

This tragedy, every mother’s worst nightmare, happened for a reason wholly unrelated to either my husband or my son, but because of my job: I am a United States District Court judge. A lawyer who had appeared before me was angered by the pace of a lawsuit he had filed in my court. He came to my home seeking revenge.

The very idea of harming a judge is so removed from my reality as to be inconceivable. The thought of finding a judge’s home address, identifying their family members, would never enter my mind. They are judges, sure. They can be found in their courtrooms. We may argue our hearts out before them, and maybe win, maybe lose, but that’s where it ends. It would never, but never, go beyond that point. At least that’s how someone like me would see it.

But things are different now. Violence, threats, pressure, both public and private, have gone more mainstream. People now take their grievances, which know no bounds, to people’s homes. They protest on their street in the middle of the night, their children and neighbors be damned. They scream at them in restaurants. They threaten harm. They do harm. Lines that once were uncrossable no longer exist. Everyone is fair game. Wherever they are is fair game. Their families, friends, neighbors and business associates, all fair game when the cause is existential and the unduly passionate dream of martyrdom for their cause.

It’s bad enough when it comes to elected officials. It’s bad enough when it comes to regular people who, for whatever reason, are perceived as enemies, whether of the state or of the cause. But when it comes to judges, there’s a difference.

For judges and their families, better security is a matter of life and death. But its importance goes beyond our well-being alone. For our nation’s sake, judicial security is essential. Federal judges must be free to make their decisions, no matter how unpopular, without fear of harm. The federal government has a responsibility to protect all federal judges because our safety is foundational to our great democracy.

The independence of the judiciary, which relates to judges’ ability to make hard decisions that almost invariably anger one side if not both, is one of the only tools possessed by the Least Dangerous Branch. We don’t have to like their decisions, and often don’t, but we have to have faith that their decisions are governed by law, facts and logic.

They may be wrong, which is why we have appellate courts, but being wrong isn’t the same as being conflicted, biased or disingenuous. We must believe that the ruling of a judge is rendered with integrity, no matter how wrong we believe it to be, or they become the enemy in people’s minds. And as the enemy, their lives are no more worthy of protection from influence, pressure and harm than any other enemy’s life.

This is a matter of singular concern for judges. Their duty is to make life and death decisions about other people. It’s an inflammatory job. Once, our respect for the office blunted any passion that would cloud our understanding of what a judge does, but the very notion of respect seems archaic now. From president to pundits, judges have been reduced to partisan hacks unworthy of respect. Not just reduced to ordinary people, but singled out as particularly bad people. That makes their lives that much more easily subject to pressures, and that much less worthy of safeguarding.

Add to our diminished sense of respect for the judiciary the ready availability of finding every bit of personal information about a federal judge on the internet. Home, school, family, church, whatever information you seek, it’s there to be found. And when they take off the robe, they’re pretty much like anyone else, with spouses, children, homes and cars. They go to the supermarket to buy food and the clothing store to buy unmentionables. If you want to find them out of the courtroom, the internet makes it not only possible, but pretty damn easy. Why you would want to find them outside the courthouse is a different matter, but that horse has left the barn.

How to adequately protect judges is a different matter. Whether it can be done isn’t clear, and what protections they are due is a subject for debate. But the one thing we ask of judges, and we hope and expect them to do if they are to fulfill their critical role in resolving the highly emotional issues presented by our complex and often irrational society, is that they rule without fear or favor.

If a judge has to worry that a decision will so anger a litigant, so anger a lawyer of dubious mental health, that her life is put at risk, it will influence her judgment. That, indeed, is the point of putting judges in fear, to influence their judgment. But it goes further, as a judge’s child might be taken hostage or harmed, a judge’s spouse might be beaten. These are not the things a judge should consider when ruling, that she or her family could be harmed if someone is inclined to believe that pressuring judges is a legitimate means of influencing government.

How to address “favor” is another matter.

19 thoughts on “Judging Without Fear Or Favor

  1. Richard Kopf

    Scott,

    Leave it to you to hit the rhetorical sweet spot: “How to address ‘favor’ is another matter.”

    Most judges, both federal and state, are careful but not overly concerned with a guy and a gun. What concerns me far more is the lack of self-awareness about my world view. I find myself thinking things that barely meet the definition of reality, and that is not because I am old. I punish sometime to reflect my own sense of right and wrong. I know it in my gut but my gut lacks a brain.

    Americans need not fear that judges are scaredy-cats . They have every right to be concerned, however, that the black robe does not insulate the judge from going with the home team, even if the judge is not aware he or she has a home team.

    All the best.

    Rich

    1. SHG Post author

      I don’t think most Americans think judges are scaredy-cats, but more than a few have told me of their concerns that people are now of the view that they’re fair game to be pressured, whether by public campaigns to influence them or protests, and it’s just a baby step to some psycho going postal.

      As for “favor,” that’s another matter. But you already know that.

      1. Richard Kopf

        SHG,

        I suppose you are correct (as usual). I should not forget that as a fed. I don’t have to worry so much about security concerns, notwithstanding the tragedy suffered by Judge Salas. Same, same if you stop the locals from castrating sex offenders. Impeachment is not likely.

        If I have a big worry about judges, I worry for state judges (like my former law partner). The worry is both in terms of security and political pressure “to do the right thing” that communities (and local lawyers) use as a cudgel for reappointment that almost always turns upon the whims of a rather uninformed electorate.

        All the best.

        RGK

        1. SHG Post author

          As I’m wont to say, nothing is a problem until it’s a problem. I bet Judge Salas wasn’t worried the day before her son was murdered. If the point is that if there’s no particular need for judge’s personal and family information to be public, there’s no reason to expose judges to the potential for a problem, even if it’s only inchoate (until it isn’t).

  2. Guitardave

    For the psychopathic mind, law is too ‘impersonal’….and I’m guessing that stabbing a law book just don’t do it for them either.

    1. B. McLeod

      I used to occssionally beat the crap out my Federal Tax Code (paperback version) with a pair of nunchaku. But that was just tax, and normally about the point where I would be hitting the fifth or sixth code cross-reference in the chain of sections needed to answer what initially appeared to be a simple question. That was my only textbook that failed to survive law school. It was a highly-condensed “student” version anyway, useless in any actual tax practice.

      1. Guitardave

        Thanks for the LOL, B.
        (Read the next lines doing your best Sean Connery (RIP) impersonation.)
        Nunchaku?…I thought you’d have went with the broadsword, McLeod…
        I bet it was funny as hell when those silly Jap toys ricocheted off the book and corked you on the noggin. Hahahahahaha

  3. B. McLeod

    Judges are no more exposed than any domestic lawyer, any prosecutor, or even any state or local official who has to make a decision on mask mandates or COVID restrictions.

    As far as mental freakouts by lawyers being a factor, that will only worsen as law schools continue the slide to social and political correctness mills, and as state bars continue to abandon requirements for mental history disclosures. That is, as we purposely license increasing numbers of the passionately irrational and unhinged, we will consequently have increasing numbers of lunatic lawyers to worry about.

    1. SHG Post author

      Lawyers throwing Molotov cocktails at police cars during riots could never happen, because they’re lawyers.

    2. DaveL

      we will consequently have increasing numbers of lunatic lawyers to worry about.

      The fashion of the day is to avoid such language as “stigmatizing mental illness”. But I have to wonder, seeing what’s being offered up in deadly earnest by the President’s own lawyers, and more than a few academics, is it possible we haven’t stigmatized it enough?

  4. Rengit

    To spin the Clausewitz aphorism, I guess you could call this “the continuation of lawfare by other means”, i.e. lawfare by actual warfare. In that respect, the Marin County Courthouse terror attacks/kidnap-murders were a form of lawfare.

    Let’s hope legal academics and modern-day Arthur Kunstlers don’t start indulging this line of thinking.

      1. Rengit

        Yes, Bill; no clue why I thought Arthur was his name. Re-reading his biography, I may have been wrong to think he wouldn’t have endorsed “lawfare by other means”, at least so long as it is done by others.

      2. F. Lee Billy

        Make that William, would you please? Maybe RengIt missed my comment a few weeks ago where I dropped the Kuntsler name in an now historical context. (We lined him up way back when,… when lawyers were lawyers and judges were,… Ahem?!?)

        For the record, my name is also Bill. However, I am a Jr. It’s been a tough row to hoe, being a Jr. To a bona fide war hero. We feel terribly inadequate. Trust it.

        The good news is: We are still here and able to read and type, if you catch my drift? We love to write, but say what to whom, where and how often? It’s a problem. Trust it.

  5. Skink

    I’ve been asked to be both a trial and appellate judge in Swamp court. I’ve turned it down, mostly on money matters. The pay is a fraction and the retirement offerings don’t make up for the shortage.

    But why would I, or anyone else qualified, do it if fuckweasels come after me personally? I carry a weapon everywhere it’s legal, because fuckweasels exist for me. Do I become a judge with the enhanced possibility I will have to use the weapon?

    It influences not only decisions, and frankly that’s a lesser influence than who wants and accepts a judgeship.

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