August 2000

Speak Up for Your Judiciary

by Richard C. Eymann
WSBA President

As the legal profession struggles with public misperceptions and misplaced criticisms, we have allowed our judges to be wrongfully castigated by media, politicians and others — without response. At the heart of our criminal and civil justice systems is our judiciary, comprised of judges who, with very few exceptions, conscientiously interpret and carry out the laws. Indeed, the preamble to the Code of Judicial Conduct states:

Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law.

Yet on nearly a daily basis, trial and appellate court judges are criticized for decisions clearly based upon applicable law, court rules and sentencing guidelines which they are required to follow.

Is there a rational explanation for why people attack our judiciary? Who are these people? Some are legislators or elected officials who may be hoping for knee-jerk responses from an uninformed public to further their personal agendas. What is ignored is that these legislators and their predecessors wrote many of the laws being enforced by the courts. There are also those who encourage public complaint and then profit by disseminating such complaints, e.g., some radio talk show hosts. These are people who mock our judicial system, and either cannot understand how laws are written or interpreted, or simply are ignorant that our judges are called upon to protect justice even when it may be unpopular. Their purpose is to create conflict among their audience, to shock and belittle for the sake of higher ratings and advertising dollars. We have all witnessed brutal editorials when a suspected criminal’s case is dismissed on a technicality. Yet to maintain impartiality, judges are essentially barred from responding. Canon 3 of the Code of Judicial Conduct states in part:

Judges shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing.

As lawyers, however, we are not only allowed to speak out, but have an affirmative duty as stated in RPC 8.2(c):

A lawyer, in order to assist in maintaining the fair and independent administration of justice, should support and continue traditional efforts to defend judges and courts from unjust criticism.

For every lawyer who speaks up for judges, there are 10 who resonate with silence or profound ambivalence. Some lawyers even join in the attack — a form of cannibalism. The resulting loss of respect for our judiciary fosters even greater loss of respect for the entire legal profession.

Many spurious attacks emanate from professional "wannabes," who either purposely or innocently ignore the fact that our justice system actually works very well to serve the public while addressing necessary changes within our society. As we have seen in election years, members of the judiciary are easy targets for politicians looking for votes. Even more disconcerting are attorneys with political or other agendas who are openly critical of judges. Recently, we have seen judicial candidates resort to meanspirited and false accusations to unseat sitting judges, using such terms as "soft on crime" and "cookie-cutter justice." Lost in the lies, distortions and ridicule is the incredible dedication, hard work and frequent sacrifices of personal time of our judges. An example of this dedication is the implementation of a juvenile drug court by the superior court judges in Spokane. This special court has revolutionized community involvement in fighting one of the worst cancers to infect our society (especially youth) — the proliferation of illegal street drugs. In the words of Spokane County Superior Court Judge Neal Reilly, "When I walk out of our juvenile drug court, I am exhausted, but for the first time I feel exhilarated that this new court and its system will change young lives."

Despite such efforts and achievements, in today’s climate of anger, frustration and vilification, anti-lawyer propaganda has risen to new levels with the incorporation of judge-bashing and judge-scaping. A retiring judge told me that in looking back over 30 years on the bench, the decline in positive public perception of judges has left him with a feeling of profound longing for what once was. Another judge related her disappointment in today’s lack of knowledge by most members of the media of a judge’s role.

Lawyers often ask, "Well, what are we supposed to do about it?" We must start by taking lawyers to task for spurious critical comments, innuendos and misinformation about our judges, and challenge those who seek political gain or some private agenda by removing them from their soapboxes. Criticism should be limited to those truly justified cases and should be done in a constructive way.

Regarding judicial critics outside our profession, lawyers as a whole must work harder to provide them with the basics of legal education. Media, politicians and the general public should not be left to their own resources. We cannot expect reporters or radio talk-show hosts to broadcast with any accuracy or balance if they have little or no understanding of the judicial branch of government. As officers of the court, we all have an inherent duty to protect the integrity of the court, and make every effort to curtail the increasing judicial disparagement seen in recent years. So the next time you see our judges unfairly assailed, take your duty under RPC 8.2(c) seriously — step forward and speak up.

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