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Southern Illinoisan (Newspaper) - July 7, 1974, Carbondale, Illinois SECTION SICTION 45 Commentary Illinbisain Commenfary SUNDAY JULY 7 1974 The American what makes a really good one By Donald Dale Jackson New York Times Special Features Scratch the average per gons idea of what a judge should be and its basically Solomon says Yale Law Professor Geoffrey C Hazard Jr We demand more from them we look for miracles from them and spit on them when they dont produce them Its romantic emotional un examined unadmitted and al most indiscussable We expect them to be honest wise patient tolerant com passionate strong decisive articulate courageous the listof virtues stretches on with the dogged unreality of a Boy Scout handbook Every few years a new attempt is made to define the essential qualities of a good judge and each time the fantasy is spun anew No man can bethe sort of judge we expect an American judge to be wrote Justice John Parker two generations ago unless he is absolutely honest absolutely courageous EDITORS NOTE Judges in Illinois currently are elected In recent months various proposals have been forward ed to remove their selection from the realm of partisan politics and base it on the merits of each individuals judicial knowledge As law and blessed by God with an understanding heart And a judge should be a kindly man The power he exercises is so so easily make or break an ordinary man that no one but a kindly man be entrusted with it Our expectations desperate ly romantic as they are are grounded in historical and social reaUty America is a lawriddennation And in such a society the judges the inter makers and citizens in Illinois ponder whether to retain the election system or to replace it a studyof the judiciary around thenation may add pertinent information This study is excerpted from the book Judges by Donald Dale Jackson preters of the law acquire the status of a priesthood they are bearers of The Word The judge is the rock in the stormy sea of American social change Yet the impuse to lift judges above the ordinary fun or mankind persists even after its fantasy content is conceded Try as I may I confess I can not put down the notion that a good judge a truly good judge is something beautifulsome slowing the trial so much that hes killing itbecause hes looking everything up Com mon sense helps and so does knowledge of the communi ty I define agood judge says William Kunstler as a person thing beyond the normal at tainment of men something one feels an almost pathetic urge to venerate And so the bad judge is worse than a bad any thing else A bad judge enters another dimension of evil other circle of hell The bad who understands the realities judge has betrayed our innoof American life ana who is cent trust and such betrayal consciously doing something to permits no forgiveness change Kunstler adds The melancholy fact is that he knows nojudges who meet there is no checklist for the at this standard tributes of a good judge no The most important prere convenient formula not even quisite says New York Civil any generally agreedupon obCourt Judge Irving Younger jective criteria Allan Ashmanresearch di rector of the American Ju dicature Society yearns for the establishment of objective standards We ought to be able to de suiu if v is a vivid sense of fairness Every thing else is ac Judicial failings are more easily identified A flaw in a judges character is painfully 0 visible magnified by his pow Velop a mathematical formula er ofsome kind to determine weaknesses of Judges landscape Most US judges are political arena products A judge in Curtis Boks epigram is a member of the bar who once knew a gover nor The change of a single word read senator for governor extends the application of sonian democracy in the 1820s and 1830s however one state after another switched to an electivesystem Judges were elected in Georgia as early as 1812 Mississippi in 1832 be came the first state with an all CALcuUo UIC Boks law to the federal district elective judiciary courts For Supreme Court justices crank it up another notch A Supreme Court justice is a member of the bar who once knew a Far more than their brothers From 1846 when New York decided to elect its judges until Alaska joined the Union in 1958 every new state arrived with a them provision for an elected ju court judges and elect their highercourt brothers Its a changing vista no fewer than nine states tampered with one aspect or another of their ju diciaries in the 1972 elections We see the judges move like lions John Selden wrote more than three centuries ago but we do not see what moves are products of the political arena n France and most otner countries in Europe judges are civil servants who undergo an apprenticeship and spend their career on the bench In Eng land they are selected from among the barristers an elite corps of trial specialists In Japan wouldbe judges must survive a twoyear post lawschool regimen of courses field training and special ex animations By contrast an American judge recieved until recent years no specialized training whatever for the particular demands of his job Even now judicial training is limited to an occasional threeday insti tute and longer voluntary ses sions The backgrounds of judges and often their qualifications as well are political No Accident The political judiciary is no accident It derives in part from the same pervasive power of law that leads us to esteem judges so highly This is a so ciety dependent on law for the resolution of every important social economic or cultural issue from abortion to sub urban zoning taxes to racial equality obscenity to wiretap ping Historically weve always needed lawyers says Buffalo law professor Herman Schwartz and that means the judiciary is not sacred or a priesthood but that it partakes of the blood and guts and filth of the accumulation of conflicts in a conflictridden society Judges cant stay aloof Nixon packed the court the Federalists packed the court everybody packs the court the court is a political instrument The pervasiveness of poli tics is a fact of life Its no more right or wrong than a thunderstorm is right or wrong The politics of judicial se In the narrow sense ifis Repub lican and Democratic par tisanship But in the broader sense it reflects at least theo retically a commitment to the principles of democracy commitment the belief tht Americans should have a major role in selecting their judges has had an uneven his None of the 13 original states provided for the choice of judges by nopular selection Seven left judicial selection to the legislatures and the other six entrusted it to a combina tion of the governor and either the legislature or an executive council iltetlve Switch With the eruption of Jack bursts of discontent and re States reinstated the appointive method Others in the early 20th century turned to the nonpartisan ballot The current phase began in 1940 when Missouri voters adopted the concept of merit selection which became known as the Missouri Plan The governor selects a judge from a list of names drawn up by a commission and the judge subsequently goes before the voters without opposition on a retention ballot The Missouri Plan has steadily gained adherents ever since despite the almost reflexive opposition of most politicians The American Bar Association endorsed it early and an oc casional giddy reformer has even proposed that it be ex tended to the federal judiciary where the president appoints judges with the consent of the Senate Four Distinct Systems By 1973 the currents and crosscurrents in judicial se lection had left the United States with four distinct sys tems each prevailing in a dif ferent part of the country Appointment by the governor or legislaturesurvives in 10 states The governors ap pointments commonly must be confirmed by either the leg islature or an executive coun cil Connecticut Delaware Massachusetts Maine New Hampshire New Jersey Rhode Island South Carolina Virginia and Hawaii choose their judges this way Fifteen states use non partisan ballots on which judicial candidates are not identified by party Usually however candidates are nominated by parties These states are California Arizona Oregon Washington Idaho Nevada Montana North Da kota South Dakota Minnesota Michigan Wisconsin Ohio Oklahoma and Kentucky Another 16 choose judges on partisan ballots though in most of themthe real contest if any is in the primary This is the dominant method in Alabama Georgia Arkansas Louisiana Mississippi Maryland North Carolina Tennessee Texas West Virginia New Mexico Kansas Illinois Indiana Pen nsylvania and New York And finally nine have opted for the Missouri or merit se lection plan The nine are Colorado Iowa Missouri Ne braska Utah Alaska Wyom ing Vermont and Florida Variations Variations and combinations are almostinfinite Some states use merit selection for their appellate judges and partisan or nonpartisan elections for the rest Others1 appointlower i They prefer it that way By tradition and often by tem perament as well judges usually choose to remain as close to invispe as possible Many of them believe their role precludes acknowledgement of their own humanity To them a judge is the per sonification of law and thus an instrument He decides by code or statute or precedent by an accumulation of weight on one side of the scale or the other His own character values ex periences and prejudices are sublimely irrelelevant Acknowledging his own hu manity for a judge is no sim ple exercise It requires un learning hardwon lore Some judges think the law is the law says Chief Justice Franklin Flaschner of the Massachusetts District Court They dont liketo concede the extent to which their own atti tudes and ideas and personality pervade the exercise of their function Other Reasons Too There are of course other less honorable reasons for the judicial taste for invisibility To wall off ones humanity is also to deny the existence of preju dice cruelty mental or physi cal laziness greed and the dozens of other entries in the unlimited edition of human frailities But for all his professional inhibitions a judge can no moreavoid feeling than he can avoid being who and what he is All their lives forces which they do not recognize and cannot name have been tugging at them Justice Benjamin Cardozo wrote of judges inherited instincts traditional beliefs acquired convictions and the result is an outlook on life aconception of social needs a sense of tile total push and pressure of the cosmos which when reasons are nicely balanced must determine where choice shall fallWe may try to see things as objectively as we please None the less we can never see them with any eyes except our own And what our senses tell us is inevitably filtered by memory through blurred scenes edited by time down the dim corri dors of our own experience Most judges would sooner admit to grand larceny than confess a political interest or motivation It is so rare as to approach the charmingto hear a judge concede that the power prestige or security of the bench holds some attrac tion for him Find a judge who admits to political calculation orworse ambition and youve found one who may shortly be blackball ed for violating the lodge rules The curtain is thick and judges are apt to swat at anyone who tiptoes forward to rustle it and look behind it DALE JACKSON whether a judge is qualified or not he declares For example demeanor How important is it There should be a way to measure it Is a man learned in the law Is that subjective How of ten are his decisions reversed We should have hardcore criteria for selecting and evaluating I dont like the idea of quantify ing but if were going to say a judge is incompetent and should not be retained in office we have to have something more than a poll saying 35 per cent of those interviewed think hes a jerk We Ought to Try I admit that it may be im possible he continues but I think we ought to try it Columbia Law Professor Harry Jones in a brillant essay on the subject delineated what he considers the essential qualities of a trial judge The demands and strains of his courtroom task require un usual emotional stability ex ceptional firmness and serenity of temperament and great intellectual and psychic en durance He must have un usual talents of communica tion He needs to be em pathetic and with jurors and witnesses compassionate without being mushyheaded in sentencing at once sensitive and aus tere By these criteria he asks has any lawyer ever been qualified1 for selection as a trial court judge Fully quali fied Of course not But every lawyer knows at least a few trial judges who have come wonderfully close to the ideal He must be able to take a lot of says F Lee Baily He should be strong and compassionate he should have a quick mind and beright a fair amount of the time If hes right all the time hes span the human from greed and bigotry to laziness and stupidity from the indisputable venality of a cor rupt judge to the subtle mis direction of an intolerant judge Every lawyer seems to know at least one alcoholic judge and perhaps three who are senile There are bigots on the bench and arrogant martinets There are the dullwitted the narrow minded the harsh and the lazy There are those who are merely weak mediocre the mice of the judiciary And there are the callous and insensitive judges whose ex posure to human pride and folly has encrusted their own humanity See Only Workshop The horrible thing about all legal officials even the best British author G K Chesterton wrote about all judges mag istrates barristers detectives and policemen is not that they are wicked some of them are npt that they are stupid severalof them are quite in it is simply that they have got used to it Strictly they do not see the prisoner in the dock all they see is the usual manin the usual place They do not see the awful court of judgment they see only their own workshop The American court system is a bewildering maze of parallel perpendicular criss crossing and overlapping lines Our history of dividing legal authority among the federal government states counties and municipalities has created a residue of courts and juris dictions which is incom prehensible to all but the best traveled lawyers No two states have precisely the same hierarchical court structure And coursing alongside or above or around the quagmire of state and local courts is the federal system sometimes sharing jurisdiction with state courts other times holding its own exclusive mandate and in still other in stances empowered to snatch a case from the grasp of state courts A chart maker would collapse in despair JP to Supreme Court At the bottom are justices of the pace and magistrates Halfway to obsolescence the surviving JP courts usually deal with nothing more serious than traffic violations and the collection of debts Some have the authority to commit an of fender to jail and others dont The presiding justices are usually smalltown merchants frontatibns of the or politicians locally knowlneighborhood quarreV that es edgjablebutuntrained in the Magistrates in child from negligent known variously as a condemnation of property to make room tor a new highway Judges at this level are the tribunes and gruardians of everyday American justice which is only as good as they are There is also the plateau of the specialists juvenile courts probate courts smallclaims police court magistrates court and others are a slightly ele vated urban version of the JP Magistrates commonly have the power to arraign criminal defendants and set bail to issue warrants and to pass judgment on the simplest categories of crime petty larceny say or traffic of fenses Jury trials are rare at this leve Magistrates may or may not be lawyers Judgesof the lower courts courts Finally in the highest aerie of all passing judgment on the most critical and farreaching constitutional issues there are Judges 01 uie ivwei tuuiw are the judicial foot soldiers thenine robed philosophers of the arbiters of the daily cori the U S Supreme Coart Polls show trust in judiciary giving way In Washington Family Court a black mother tries to explain to the white judge that her de linquent 13yearold son is not a bad child He just resents somethin yknow He wants to be recognized The judge looks up from the forms he is filling out asks two or three questions and orders the boy to a detention center The mother collapses in sobs hugging her son I loveyou Im so sorry she cries Youre breaking my heart I dont want nothin to happen to you I dont want you to go no where Oh Im so sorry Her son begins to cry too Tve never seen judges promoted on merit and Im 64 ft s pott fits higher court and he identified the reason politics He didnt toil for the party Sure you do your work he continues you strive but you dont have that same won derful alert and thereis a long pause sense of well The Warren Supreme Court was the turning point Its lib eral expansive decisions made the court a constant focus of criticism and provoked a per sohal animosity that justices had before No billboard ever demanded the confrontation exposed the vanities and weaknesses of judges to a polarized au dience When California Judge Harold Haley was abducted from his courtroom and shot to death judges throughout the Herson begins to cry too long pause senseof well piiiDoaru ever death judges tnrougnout and the sound of their heavy being You can content yourself impeachment of Justice Oliver country were shocked and anu SS lrfrnnm rouh hems a eoodman in a bad Wendell Holmes courtroom security was sobs fill the small courtroom The lawyers and social workers stare at4he wall while the judge continues to fill out forms Finally he can no longer ig nore the weeping mother and son I want to tell you a story James he says I had a young security guard come up to me the other I was parking my car He said I had put him in the detention center once for delinquency He said he learned a lot got a good eduction and now he was a guard Youve got a lot of good in you James Youll do okay if you The Connecticut judge picks at his lowcalorie lunch and broods about the injustice In his own life When you get bypassed he is saying it does something to your ego It makes you a de feated man Theres nothing worse psychologically The i judge has been repeatedly passed over for promotion to a with being a good man in a bad system sure But you have to look at yourself in the mirror in the morning and ask Whats wrong with me iim in vicious Wendell Holmes The lawbarrier was down and critics of all hues galloped through the breach The laws delay its cumbersome mechanics became a high 1 m in 8 V1C1UUS ayawui where merit hasno meaning decibelpubhc complaint noftmcivp TiTAOtl whatever none Ive never seen judges promoted on merit and Im 64 Its The judiciary more than any other American institution has traditionally enjoyed a warm and uncritical public trust In past years judges regularly topped the publicopinion polls comparing the prestige of var ious professions The mystique the robes and gavels and the All rise has promoted and preserved the deference But the dreamy insulation of the judiciary has been punc turedJudges are more visible partly have taken a few tentativesteps out of the shadows and partly because new floodlights of public at tention have been turned on them Thepervasive practice of plea bargaining in the crowded shabby criminal courts became recognized as a somewhat unsavory com promise with the raw facts of the systems inadequacy a shortage of judges and courtrooms Fortas Haynesworth Carswell The resignation u n der pressure of Justice Abe Fortas inspired a reexamination of standards of judicial ethics The legal profession drew up a new code of conduct for its priests The Supreme Court nomina tions of Clement Haynsworth and G Harrold Carswell buckled under the gaze of an awakened public The highly publicized political trials of an era of courtroom security tightened The change in pubhc attitude is confirmed by publicopinion polls A crosssection of Con necticut citizens asked in 1970 whether they had confidence in the basic integrity of our court system voted no 117 to 48 On whether majority and minority groups are treated equally by the courts the vote was a lopsided 159 to 15 against Asked if the men presently appointed judges are the best qualified for the job 113 saidno and 17 yes A 1971 Harris poll in Utah found that 60per cent of the public had a negative opinion of the courts and 28 per cent thought the courts had changed for the worse in the preceding The most vocal segments of the public clustered in angry bands at opposite ends of the political battleground are equally harsh on judges Rightwing critics believe judges are too permissive with criminals Policemen particularly and large elements ofletterwriting public judges invariably get more mail from the right than from the left accuse Judges of excessive leniency Many charge them with contributing to a general decline in respect for law authority and public morality On the left the argument that judges are agents of an oppressive state dedicated to1 perpetuating its own power and to the principle of equal justice Justice means just us white folks H Rap Brown has said Between extremes of right and left organized groups ol courtwatchers have ap p e a r e d in Massachusetts Michigan Pennsylvania and other states Especially alert to judicial violations of civil liberties courtwatchers keep track of judicial performance Is a defendant told of his righjt to an attorney and a jury trial Is he given a chance to cross examine witnesses Are in terpreters present for those who need them 1 A more significant change is the recent introduc tion of judicial disciplinary commissions Their five years Fortytwoper cent fectiveness has been uneven of the Utah citizens rated inbut their mere presence competent judges a serious the unfairly treated citizen a problem 57 percent believed recourse he has never haft that vulnerable 7tovl before political pressure Donald Dale Jacksok ;