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Judging Crimes is a blog about criminal law, violent crime and the judiciary, dedicated to making the liberal case for greater democratic control of the criminal justice system.  It's a "view from the trenches" because it's written by a practitioner, not an academic or journalist.  It examines the changing role of the judiciary in American society by looking at what judges actually do, rather than what they say.  I know what they do because I deal with the consequences every day. 

Opinions issued by judges, from Supreme Court justices on down, are justifications for the exercise of governmental power.  But it is the exercise of power itself that should command our attention, not the justifications.  Judging Crimes is concerned with the reality of judicial power rather than the verbal formulas used to defend it. 

American law professors have long liked to say they teach their students "to think like a lawyer."  Learning to think that way is a matter of internalizing certain assumptions.  The practice of judging is likewise based on a foundation of shared assumptions, among them that the United States Constitution -- a document of 8,335 words, the length of a book chapter -- provides an answer to every question.  Rather like a Ouija board.

These assumptions are so ingrained -- and their internalization is so necessary to the successful practice of law -- that most people who subscribe to them aren't even aware of having done so.  Judging Crimes will try to engage not just with the expressions of judicial power, but with the assumptions on which those expressions  rest.  

Judging Crimes won't be filled with daily entries commenting on the day's events or provide a best-of-the-web welter of links.  Many other blogs already do that, far better than I could hope to do.  (Check out these.)  Instead, Judging Crimes will contain pieces of a length that might seem long for a blog but would be short in a serious magazine.  I hope to post new pieces several times a week.

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« 398. Regal condescension | Main | 396. Settlement authority »
Monday
26Oct2009

397. The power of the wig

In the cinders of Victoria, Australia, "The Hon. Rob Hulls MP, Attorney-General and Minister for Racing" (what makes you think I'm making fun of his titles?) gave a speech in which he said:

I challenge the assumption that a truly independent and robust judiciary should not be able to withstand an element of public scrutiny - an engagement with the community that enables it to be stronger and more effective.

I see judicial independence as a sword rather than a shield, and a strong judiciary as one that is on the front foot - out in the community, explaining the principles behind decisions without having to make excuses, bringing the population with it.

The AG further said that the legal profession as a whole needs to ''descend from its lofty view of itself as a detached and immutable system'' and instead ''embrace its true purpose as a service available for those who need its assistance''.

Finally, he added:  "As especially well-remunerated public servants, people look to judges for exemplary behaviour - and they do so in the assumption that those who sit in judgment upon others cannot do so properly if their own conduct is tarnished."

Them's fightin' words, mate.

Frankly, I don't understand how anybody can take seriously a person who dresses like this.  But Australians, apparently, have figured out a way.  Maybe it's the cultural cringe or something.  Who knows.

Anyway, in her blistering response to the AG, Chief Judge Marilyn Warren zeroed in on the truly offensive part of the AG's speech:

"Let me dispel these misconceptions,'' the Chief Justice declared. Which ones? ...  that judges are ''lofty''; and that they are especially well-remunerated ''public servants''.

''Certainly judges are well remunerated by community standards,'' she said. ''However, judges serve the public; we are not 'public servants'. To suggest so displays a complete misunderstanding of the structure of government.

''The judiciary is a separate arm of government and not part of the executive, which public servants are. It is a fundamental constitutional principle upon which our democracy is built.''

I'm just about certain she was being serious. It's a fundamental constitutional principle upon which Australian democracy is built that you can't be a public servant unless you're assigned to the executive branch.  An understanding of the structure of government requires learning the distinction between "serving the public" and being a "public servant."

The peculiar thing is that the silly wig works.  How else to explain the apparent reality that The Age's political editor thought the chief judge was saying something, and not merely confirming the pinpoint accuracy of Hulls' speech.

AuthorJoel Jacobsen | CommentPost a Comment | | |
DateMonday, October 26, 2009 at 10:31PM in , ,

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