Reading the impressions of third-year law student Adam Heuett at “The Successful Advocate: From Zeal to Zen in Legal Services” – Tree.com, I found myself putting his remarks in the context of what’s lately been going on among lawyers – – – and I don’t mean the ones in front of the bench but the berobed lawyers sitting behind it.
Wisconsin Supreme Court Justice David Prosser is being investigated by police and the state’s judicial ethics authorities concerning allegations made by fellow Wisconsin Supreme Court Justice Ann Walsh Bradley that Justice Prosser supposedly “choked her during a disagreement related to the state’s partisan battle over the collective bargaining rights of public employees.” See “Justices’ feud gets physical” – JSOnline and “Wisconsin’s Alleged High-Court Choking Incident Gets Two Probes.”
If this really happened, it’s bad news. Are dissension and distraction and not decorum and dignity the new watchwords on the Cheesehead State’s highest court? It was just last March that I blogged about judicial ugliness of the verbal kind at “And speaking of incivility, one judge calls another that nasty word that rhymes with rich.” That post involved a previous lapse in judicial demeanor, which supposedly took place between Justice Prosser and a different Wisconsin Supreme Court Justice, the Honorable Shirley Abrahamson. If both incidents are genuine, I have to hand it to Justice Prosser. He doesn’t play favorites.
The last time I recalled actual brawling jurists was two years ago when I noted as part of “Of antagonistic attorneys and aggressive adjudicators, incivility continued,” how 2 “jousting judges,” Honorable Carlos Cortez and Honorable Eric Moye, went after each other in an alleged in-chambers shoving match.
News reports about judicatory pugilism result in a lot of understandable head shaking and ‘tsk-tsking.’ And from the legal profession’s image-police, there’s no shortage of hang-wringing since subscribe so fervently to the belief that such public disclosures erode the public’s callow innocence, its child-like trust in the system.
But is that the case? In a world of 24/7 reality-television where no-holds barred public figure misbehavior is celebrated and unflinching online social commentary goes unfiltered, I don’t believe such eye-averting community naiveté exists anymore. And what about the no-longer embarrassing immediacy of sexting, Twitter, Facebook, and YouTube oversharing that goes viral? We’re long past the era when you could stop someone in their tracks by asking, “Have You No Sense of Decency?”
Taking a different tack on the public’s supposed naiveté, Jeff Shesol in this morning’s NYTimes.com at “Should Justices Keep Their Opinions to Themselves?” discusses judicial temperament. But he places it in the context of how the justices on the nation’s highest court are increasingly seen if not always heard taking part in public political opinion discourse. “We are not naive,” he writes, noting that we long ago stopped believing that judges weren’t also political animals.
But while Shesol does not expect judges to live like cloistered monks, he does advocate temperament and some distance. “The public’s faith in the rule of law depends, to no small degree, on the idea that judges try, as best they can, to maintain a judicial temperament — that they keep a certain distance from public and even private events that appear, in the truest sense of the word, partisan, and that they maintain an open mind.”
And there’s the rub. Whether it’s brawling, name-calling or just bloviating on politics, people are vulnerably human. Most of us are capable of occasional lapses, even egregious ones. But when you’re talking about litigants standing before the bar of justice, what matters most is that the parties have confidence that the presiding jurist will throughout the entire proceedings manifest the ethically requisite judicial temperament.