Activist Judges – do they have a place?

These are some brief thoughts on the role of a judge in a civil* society:

If we travel back to the days of the philosopher kings and queens, the executive was also the lawgiver and/or judge. (You may recall Solomon’s role as both King and arbiter.) In some cultures the monarch was also the chief priest. (Melchizedek comes to mind.) And the authority for each role clearly rested in that king or queen, even if the roles blurred into each other. I doubt that people ever spent much time trying to discern in what particular capacity a king or queen was acting at any given time.

But here in America we have separate and defined roles: the Executive branch, the Legislative branch, and the Judicial branch. Still, we have repeatedly seen the other two branches try to put their oars in the judicial waters, blurring the distinctions. Judges usually resent this as an incursion by those who don’t have the proper training or interests. We indignantly state that they are interfering with our judging and threatening to undo all that we (as the ones actually in the trenches day to day) have accomplished. I get the impression that the other two branches feel the same way about perceived attempts by the judiciary to do the same to them.

Still, does that mean that we do not have anything to offer each other? I’m sure there are many people in each branch who have insights that would be valuable to the others. The next question, though, is at what price. When judges stop judging, they start to look like politicians. In fact, while the other two branches are properly identified as the political branches of government, ours is not. It is only when we perform our core function – judging - that we set ourselves apart from the other two branches. Only then can we lay claim to the right not to be treated as just another set of politicians. And that claim is in large part what allows our branch to have any practical effect at all.

A judge’s effectiveness relies on the good will of the people. They must see us as truly judging: applying already existing law to a given case, and not creating it to fit a particular
set of facts. In that position, we have the moral authority to demand enforcement and compliance with our orders. This came up with President Nixon and the White House tapes. The story goes that after the Supreme Court ordered the President to comply with a subpoena and turn the tapes over, a reporter asked Chief Justice Burger how he planned to enforce the order if Nixon refused to comply. Burger said that he had the Supreme Court police at his disposal and the President had the Army’s First Airborne Division, so it may not be much of a contest. His point was that enforcement came not from force, but from authority. Nixon turned over the tapes.

I fear that we judges lose our authority when we take on official roles apart from judicial roles. Deciding cases and running the judicial branch are about the only places where we can act and not run the risk of diminishing our authority as judges. Legislators legislate, Executives execute, and Judges judge. If I wanted to pass laws or create public policy, I would leave judging and join one of the other branches.

As it is, though, I happen to like judging a lot. It is here I hope to stay.

***

*A civil society is one not under military rule. I use it in a slightly broader sense here, though, to encompass societies governed by laws and not governed based on who is in power at the moment.

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19 Responses to Activist Judges – do they have a place?

  1. You’re the only judge I’ve ever known. Isn’t that interesting? It never dawned on me that I’ve never known any judges until you told me you were a judge.

    • Tim says:

      You probably see them at the supermarket or post office or around town and never know it. We tend to blend in well with our surroundings. Unless we’re wearing our black muumuus, of course. Then we stick out like over-sized crows.

  2. Karen says:

    Words of wisdom. I’m glad you’re on the bench, Tim!

  3. Yep, same here Rachel. That is something I love about the blogosphere: it gives us the opportunity to get below the surface with people we might never interact with in any other venue. I’m a SAHM from the Midwest with no impressive credentials to speak of and here’s this judge far far away in CA whom I’ve come to think of as a friend.

    This is also reflection of your character, Tim. If I had known you were a judge before I got to know you as a down-to-earth and encouraging person, I might have stereotyped you as someone unapproachable. Being a judge is part of who you are, so I’m glad you write about it now and then; but I’ve never felt as though you flaunt your position or use your title as a means to add weight to your point of view.

    (That being said, if I ever had to appear before your bench, I’d be shaking in my boots! I’d probably even be saying things like, “You can pronounce my name however you want!!!”)

  4. I am unsure of how many judges love Jesus, and the fact that I actually believe that what goes on in the world is to be judged by those who are unbelievers, it does indeed make me glad to know that there is a lot more of a moral backbone in at least you being a judge to be able to help decipher wrong verses right in the lives of unbelievers, because you care for justice given by God.

  5. Aimee Byrd says:

    Great truths, Tim. This carries over into other vocations as well. One that really bothers me is when pastors get political–they then lose their distinctive effectiveness as a pastor. But when it comes to being a housewife, what a hodge-podge of vocations get mixed up there!

    • Tim says:

      So you’re kind of like Melchizedek and Solomon and Deborah all rolled into one, Aimee!

      • Aimee Byrd says:

        Now that’s a scary thought! But hopefully I can point to Christ in some way or another :) …which is what he tells us to do in our vocations by loving our neighbor. I think the wisdom in your article is identifying how you are specifically commissioned in your vocation to love your neighbor.

  6. Katie says:

    Indeed! Unfortunately, not all judges agree with you….

    It’s interesting reading the comments. The father of a childhood friend of mine was (is? I’ve lost track of the friend) a judge, so I knew at least one even before I married an ADA. Now of course I know several. :-)

    It really is interesting to know people in different professions that are often stereotyped (positively or negatively). It helps remind me that we’re all just people after all, whether we wear dungarees or muumuus.

    • Tim says:

      One time I wore both dungarees and a muumuu, Katie!

      And while I would bet that not all judges agree with me, the majority of those I have come to know up and down the state in the last 17 1/2 years look on things the same way I do.

  7. Shalini says:

    Wow Tim! You’re the first live judge I’ve met in cyberspace (or elsewhere!) Am I glad that I didn’t know that before I started commenting on your posts. I think I’d have been totally intimidated and too scared to go on the record with any opinion of mine!

    What I’m about to say now is in no way related to your choice of profession :P but this seemed a good place to say it in – thanks for being so real, ‘normal’ and down-to-earth (and needless to say, highly entertaining) in all that you post. Been blessed by your blogs!

    • Tim says:

      Thanks Shalini. Most of the judges I know are just regular folks (and I know hundreds of judges from up and down the state). Some of them are really funny, a few are a bit boring, and almost all are among the kindest people I’ve ever had the pleasure of calling my colleagues.

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