111. "Of great importance"

One of the most interesting things about writing – not just writing a blog, but writing in general – is the difference between what you write and what your readers read.   An anonymous comment to post 109 asks: "Hoo-wee. Man, do you realize you just compared the Federal Judiciary to the judiciary in Yemen because the Chief Justice thinks Federal Judges should get a raise?" 

Well, no, actually I didn't realize I'd done that.  But why is it offensive to compare the American judiciary to Yemen's?  Not, surely, simply because the latter is Yemeni.  Then is it offensive because one particular Yemeni judge solicited a money bribe?  We know that plenty of American judges have solicited money bribes, including some federal judges such as Manton and Kerner (see post 67, post 53, post 48 and post 24), and it would be foolish to think that every bribe-taking judge is caught.  (See post 12.)  Bribe-taking is very low-risk for judges.  (See post 104.) 

Besides, there are many types of corruption that don't involve the transfer of money (see post 84 - and look at the Canadian case alleging executive interference in Singapore courts).  Non-monetary corruption is so endemic in American courts as to be nearly invisible to most practitioners.  We have an entire vocabulary to describe the improper influences that routinely shape judicial decision-making: "home-towned," "forum-shopping," "judge-shopping," "result-oriented," "liberal / conservative", and so on.

And then, it's impossible to look at the changing role of the Supreme Court in American society over time without being struck by its ever-increasing power.  Power itself is the corrupting influence most significant in Supreme Court history. 

So it can hardly be offensive to compare the American and Yemeni judicial systems merely because one Yemeni judge  is corrupt. 

Well, then, perhaps it's offensive to compare them because, overall, the American system functions so much better.  Nobody reading this blog has any doubts on that score.  But the post had nothing to do with the overall comparative functioning of the systems, and everything to do with the temptations that face individual judges, and the dire consequences for society at large when those temptations are indulged.  It's precisely the importance of the judiciary that makes its autonomy dangerous to the rest of society.

The author of the comment thought my excessive interest in the subject could only be explained by my abnormal psychology.  That's doubtless true, but it's an abnormality I share with "Brutus," the anti-Federalist writer usually identified as Robert Yates, a New York judge.  In his 11th letter, dated January 31, 1788, Brutus wrote:

It is, moreover, of great importance, to examine with care the nature and extent of the judicial power, because those who are to be vested with it, are to be placed in a situation altogether unprecedented in a free country. They are to be rendered totally independent, both of the people and the legislature, both with respect to their offices and salaries. No errors they may commit can be corrected by any power above them, if any such power there be, nor can they be removed from office for making ever so many erroneous adjudications.

Comments

[MF]

I think the reason such a comparison might be offensive is because, as you pointed out, "Corruption has become so rife in Yemen that it is not just causing widespread popular discontent but also impeding economic development in one of the world's poorest countries." To suggest that the American system is similar to such a corrupt system is offensive to me, as a worker in the American system. I have read a lot of your posts about judges, and I agree there are some bad apples in there. But I don't think that makes our system in any way comparable to a place like Yemen.

[Joel Jacobsen]

Okay, the two of you have convinced me that something was lost in the translation from thought to pixels. I went back and rewrote the earlier post to make the meaning clearer.