We all know that we have three branches of government, but where do judges really fit within that system, and what is it like to be a judge? These are questions that I as a trial court judge have been asked frequently.
As to the first question, it is important to understand that the Judicial Branch of government is the only one that does not so directly rely upon the majority of voters to obtain or hold office. Obviously, the Executive and Legislative branches are elected by the majority, and so they have a natural inclination to cater to that base. As a result, it is frequently left to the Judicial Branch to enforce minority rights as set forth in the Bill of Rights.
That includes protecting us from our own government, including from such things as the National Security Agency's now notorious PRISM program, the use of drones for domestic surveillance and the New York "stop and frisk" program.
As Carla Howell, the executive director of the Libertarian Party, recently said, "The abuse of power isn't the problem. The problem is the power to abuse." And keeping that power to abuse in check is an extremely important function of the judiciary.
So what is it like to be a judge? In a humorous vein, there is an old saying that to be an effective judge one needs to have three traits. One is wrinkles to show experience; the second is gray hair to show wisdom; and the third is hemorrhoids to show that look of concern.
But more realistically, it is an important position in our society that brings many challenges and responsibilities. Thus, as a result of those demands, judges mostly live in a fishbowl. We try to dress more professionally, even when going to the hardware store on a Saturday, because we always represent the judiciary.
Similarly, if we are even charged with any violations of law or breaches of ethics, we are required to self-report those charges to an ethics commission.
In addition, we judges (rightfully) give up many of our First Amendment rights of speech, because it is a violation of our canons of ethics to comment publicly about issues that either are or even could come before us. We also cannot solicit money for any causes whatsoever, except for judicial elections. That also is appropriate, because we must not use the dignity of our office to raise money.
And speaking more substantively, what classes have I ever taken or lessons have I learned that tell me when I should take children away from the custody of their parents? Or when it is safe to give them back? Judges on juvenile court assignments truly live in fear of deciding not to take custody away or giving custody back to parents, and then thereafter having a child harmed. So is the answer never to give custody to the parents? Obviously not. But that means that judges are required to take calculated risks with the safety of children.
The same is true with granting bail in criminal cases. If a defendant who is released on bail were to injure a witness, or anyone else, that would weigh heavily upon the judge who granted bail. So is the answer never to allow bail? No, once again there are almost always calculated risks that must be taken. But if something goes wrong, it falls back upon the judges, and that can be hard to live with.
Generally, there are also huge misconceptions about what we do.
For example, during my 25 years on the bench I only found one person in contempt of court. That power should be used sparingly. But just like a parent applying discipline, if the counsel and litigants know you will use this power, you mostly don't have to do so.
In addition, and by definition, judges deal in disputes at virtually every level of society. Obviously, life today is complicated, and there are increasingly more people in our country who are competing for fewer resources. So many of those people end up in court, and often one side loses. As a result, that means that we often can be controversial.
It is widely felt in judicial circles that, after a trial is over, the judge has gained one temporary friend and one permanent enemy. Actually, I feel that is an exaggeration, because, in my experience, people can accept losing as long as they feel that the judge listened, was thoughtful and explained why either the facts or the law were against the losing party.
The losers may not like the result, but they most often will accept it. But, and for good reason, "You lose because I say so" is not well received.
Another question asked frequently is why doesn't the judge "throw out" frivolous lawsuits? Actually, our powers as a judge are (again rightfully) curtailed to definable circumstances in which the defense files motions to dismiss a case and there is no reasonable possibility that a jury could find in favor of the plaintiff under the law and facts of the case.
That is a difficult standard, so it doesn't happen too often. But my suggested remedy is for the legislature to pass a law allowing judges the discretion in every case to award attorney's fees to the prevailing party. Just knowing that a judge might award those fees against people who bring meritless lawsuits would probably reduce them by half.
So, yes, judges have a complex, challenging and difficult job laden with pitfalls. But the benefits are also overwhelming. The education we receive about innumerable situations in life is amazing. And often we are able to speak for society and its values, not only when sentencing defendants in criminal cases, but also in many other situations as well.
In my time as a judge, I tried to live up to the requirements and responsibilities of the position. I know that on some occasions I fell short, but I always tried. But there was never a day that I woke up in the morning and wished that I didn't have to go to work. Each and every day I knew I was blessed to be able to serve in such a vital position, and I miss it.
JAMES P. GRAY is a retired Orange County Superior Court judge. He lives in Newport Beach. He can be contacted at JimPGray@sbcglobal.net.Copyright © 2015, The Baltimore Sun