JUDGES GONE WILD

Over dinner last night, the beautiful Bridget and I discussed the day's news.  She mentioned that she had watched an interview on Fox of the defense attorney for the sexual predator who repeatedly raped two youngs boys and was released on probation by a judge in Columbus, Ohio.  She noted that the attorney persistently evaded the interviewer's questions about the true nature of his client's crimes.  Bridget said she shared the interviewer's obvious disgust of the attorney's refusal to damn his client.

I had a different take.  I'm a little queasy about the grandstanding of TV commentators like Bill O'Reilly and Nancy Grace about the criminal justice system.  They decry the defense attorneys, the compromising prosecutors, and the hapless trial court judges who operate the system.  Yeah, there's a lot of blame to go around.  We are entitled to expect better of the men and women on the front lines of our criminal justice system.  But should anyone really be surprised when defense attorneys exploit the rules favoring defendants, when prosecutors deal to avoid the labrythine those rules create to hamper conviction, and when so many trial court judges are political hacks who go-along to get-along with the local bar?

The system is rotten.  The justice our courts often deny victims of horrible crimes is real.  We have let the courts make a the fetish of maintaining the pettifogging bulwark of criminal rights.  I say "criminal" instead of "defendant", because the fetish is entirely procedural and devoid of substance.  By that I mean there seldom is serious doubt as to a defendant's guilt -- the defense attorney, the prosecutor, the judge, everyone knows he is a criminal -- when the court reflexively makes him the beneficiary of a procedural misstep.  This is not say procedure is not important.  The power of the state must be checked.  That's why we have a Bill of Rights.  But procedure is not the holy grail of justice.  It literally just a means to an end.  When proceduralism routinely trumps justice, we have a serious problem.

So focusing our ire upon the cogs who rotate as the wheels of justice (as presently rigged) dictate may -- and I emphasize MAY -- root out some of the worst defense attorneys, prosecutors, and trial judges.  But it does nothing to change a system that delivers a thousand small injustices to the victims of crimes for every big one making the headlines.  The rottenness of the system carries on.  Only until we strike at the root of the problem, this fetish with procedure, will there be genuine reform of our criminal justice system.

That root is the appellate judiciary of this country that has taken upon itself, with the acquiescence of our elected representatives, a supreme power to determine what constitutes the law of the land.  Appellate judges seized the high ground in the wake of World War II to bring down the regime racial segregation that denied so many American citizens their civil rights.  That was a revolution our country needed to renew itself.  Unfortunately, these judges flush with a righteous victory began to aggrandize their role in American politics.  They usurped the role of our legislators to dictate the law that would rule us, first and foremost in the realm of criminal justice.

Several decades later, our appellate judges have become quite comfortable as the Hobbesian supreme authority in our government.  Thus, judicial supremacy is a perversion of our constitutional order which recognizes that the people are sovereign and therefore the final authority (as delegated to Congress) as to what is the law.  So, picking better appellate judges to operate our dysfunctional courts really isn't much of a solution.  That's because such judges can only stop further excesses; they can't, except under exceptional circumstances, undo the aggrandizement that has already occurred.  The solution lies with electing congressmen, senators, and president who will act to not only constrain appellate judges but entirely reform the judiciary back to the limited role originally designed for it under the Constitution.

But so long as we prefer to cheer on grandstanders like O'Reilly and Grace than demand that our elected representatives enact a wholesale reform of the judiciary, appellate judges will continue to go wild and usurp more and more authority to rule us.