61. Defending one's authority
In Alan Gurney's entertaining book Compass: A Story of Exploration and Innovation, we meet the Astronomer Royal George Airy. Asked in 1838 to look into the problem of compass deviation - the tendency of compasses on iron-hulled ships to point to places other than the magnetic north - he devised a complex system of correction involving strategically-placed "scrolls of soft iron", two-foot long magnets and iron chain links piled in boxes.
Airy's elaborate system succeeded in correcting some categories of compass deviation, but unfortunately not all of them. When a couple actual seagoing types ventured to suggest the system was less than perfect, Airy publicly riposted with all the uncaged ferocity of "a man trained and adept in the vicious infighting endemic in the academic world." For the Astronomer Royal, the question was not whether or not his system actually saved men from drowning. It was whether he would suffer his authority to be challenged.
Over at Concurring Opinions, there's a post about sports officiating, building on a news story about a basketball referee who gave a coach a technical foul for having a heart attack on the sidelines. Apparently the ref thought the coach's act of falling face-first onto the court showed disrespect. Professor Dimino makes the connection to judging:
In discussing stare decisis in class, we constantly ask whether it is better for courts to leave decided cases undisturbed or for them to correct past errors. But isn't the worst approach of all -- in judging and in officiating -- to admit error and say "too bad"?
It's a good question - but from a certain perspective the wrong one, because so often there's no way to know which decision is wrong. Even on the football field, the camera angles are rarely ideal.
Basketball officials have the power to call technical fouls, just as baseball umpires can eject players and managers, because at some point their authority simply has to be upheld. Or, to put it another way, the officials are never neutral, because they have their own interest in the game.
In exactly the same way, there are always three sides to every lawsuit. Sometimes judges are quite open about this: it's the reason Justices Souter, O'Connor and Kennedy gave for not overturning Roe v. Wade. (See post 23.) By deciding the case on the basis of the need to maintain what they called the Court's "legitimacy," they meant that the Court's interests were more important than those of the parties. They voted in favor of themselves.
Such striving for "legitimacy" is not automatically illegitimate, for the same reason that umpires can't permit extremely buff young millionaires to bump them, even "accidentally." Umpires and judges without power are useless things, mere impediments on the playing field. That's why a judge who "loses control of his courtroom" - allows himself to be bullied by lawyers, or changes his mind with every bench conference - is universally despised by the lawyers who appear before him.
This brings me to the Vermont judge who has recently been pilloried by the likes of Bill O'Reilly for the sentence he imposed on a long-term child abuser. Here's a fairly sophisticated job of reporting on the original sentence, which was heavily back-loaded with probation conditions, from the Burlington Free-Press. After the first wave of negative publicity, the judge acknowledged that he might be shortening his own judicial career. But, he wrote in a sentencing order, " To change my decision now, however, simply because of some negative sentiment, would be wrong." From his perspective, the ultimate issue was his own authority.
I have two basic reactions to the judge's remarks. First: That kind of backbone is what we need in judges. Second: He's putting his own interests, and the interests of his court and the judiciary generally, ahead of those of the people of Vermont. I think there's no contradiction there: both ways of looking at it are right.
Fortunately, Vermont being a relatively civilized state, the Department of Corrections gave the judge a face-saving way out of the corner into which he had painted himself.
Monday, January 30, 2006 at 10:16PM in Judging the judges, Judicial self-interest
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