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Law Rules

How we resolve our disputes

Entries in judicial (2)


Recuse me

In a prior post, I wondered whether anyone but me was paying attention to how we judge our judges. I still wonder about that, but at least now it seems that other legal policy wonks like me are paying attention to when a judge must recuse himself from hearing a case. Thanks to the U.S. Supreme Court’s decision in Caperton v. A. T. Massey Coal Co., courts around the country have been considering how to handle recusal motions.  In a 4-3 vote, the Wisconsin Supreme Court adopted rules amending the state’s Code of Judicial Conduct so that recusal is not required merely because a party to the proceedings contributed to the judge’s election campaign, or sponsored an independent expenditure or issue advocacy during the judicial campaign. The majority apparently rested on contributors’ First Amendment rights. In Florida, several committees of the Florida Bar are considering how judges should handle motions for disqualification. One of the alternatives they are considering is the equivalent of a peremptory challenge, like the judicial substitution rules in Wisconsin (Wis. Stats. secs. 801.58 and 971.20). Most attorneys and judges agree that those rules work rather well in the trial courts. It will be interesting to see if something like that can be applied in the appellate courts. For example, what if criminal defendants (or their defense attorneys) routinely filed substitution requests against an appellate or supreme court judge who had campaigned on the theme that he would be “tough on crime.” (Don’t they all?) Who would then sit in for that judge? Or would the court simply be shorthanded? Obviously, the details and mechanics of the rule need some work. But the idea that litigants should be able to “judge” the judges, by filing recusal motions or substitution requests, has some merit. Whether judges are elected or appointed, the litigants and attorneys who appear before them are best situated to judge their performance on the bench. Shouldn’t we give them some measurable and meaningful method of expressing their approval or disapproval? Money talks, but so does a motion to recuse, or request to substitute, a judge.


Judicial activism

Returning from a long 4th of July holiday weekend, I feel the need to wax patriotic.  I love this country, and what I love most is the Constitution that has served us so well for almost 220 years (or at least for the last 150 years, since the post-Civil War amendments abolished slavery). But there are still many people who do not understand or appreciate what the Constitution does for us.  A recent opinion column in our local newspaper complained that “judicial activism” sidesteps democracy.  I believe that just the opposite is true.  Judicial activism is necessary for democracy.  While there is no precise definition of the term, “legal activist” is frequently used to describe any judge who makes a decision that the users disagree with.  They complain that by making decisions that certain laws or governmental actions are unconstitutional, the courts are making law.  Of course they are!  Our democracy and liberty depend not only on majority rule, but on the individual rights guaranteed by the Constitution and the Bill of Rights. Without the right of judicial review, the separation of powers established by the Constitution cannot protect us from the tyranny of the majority.  Remember, the Third Reich was popularly elected by German voters.  Without an effective (i.e., “activist”) judiciary, the legislative and executive branches could dictate what religion people could and could not practice, where they could live and work, and ultimately who could live and who would die, all based on their race, religion, ethnicity, politics, gender or sexual orientation.  People who complain that judicial activists use the courts to subvert the democratic process are missing the point.  They are the ones who are most likely to sidestep democracy.