Le Blog du Palais de Marbre: The role of judges and judges in tumultuous times

As 2021 draws to a close, here are some thoughts for next year on how judges and judges could help calm the political and cultural turmoil sweeping the country. The ideas come from 13 articles in a recent edition of the Journal of Practice and Appeal Process housed at the University of Arizona James E. Rogers College of Law, as well as the National Institute for Trial Defense.

“This issue touches on a topical and important topic: what can be done to lessen the divisions in our country. The prefaces and articles provide essential insight into the role judges could play in this endeavor, ”said newspaper editor Tessa Dysart.

Dysart recruited judges, lawyers, law professors and yes, even a journalist (yours). Some cut extracts:

– Therese Stewart, Associate Judge, California Court of Appeal, First District of Appeal: “Americans have always had disputes, and the courts have played a role in resolving disputes that touch on issues of deep and enduring social disagreement. Public discourse has deteriorated over the past decades and it is questionable whether judicial discourse, or even (or especially) the Supreme Court has deteriorated with it. But judges are role models, and the tone and content of what we write contributes to the dialogue, for better or for worse. If our own discourse is one-sided and uncivil, the public will be justified in viewing the judiciary as a mere bunch of crier comrades – people in robes with their own axes to grind, imposing their views undemocratically to the detriment of democracy. . “

– Erwin Chemerinsky, Dean and Professor of Law, University of California, Berkeley School of Law: “I recommend that the President of the United States take a merit-based approach to filling vacancies in the Supreme Court and lower federal courts. The President is expected to promulgate an executive order, as is President Jimmy Carter, creating a merit-based selection committee for vacancies in the Supreme Court, as well as such committees for federal courts of appeal and vacancies in the courts of district. Each merit selection board should be ideologically diverse, comprising Democrats and Republicans, lawyers and non-lawyers. The role of the Merit Selection Committee should be to present to the President the most qualified people to consider for each vacant position. The merit selection board should be tasked with giving the chair at least two names for each vacant post, and the chair should promise to choose the candidate from that list.

– George Nicholson, retired Associate Court of Appeal Judge, Third District of Appeal, State of California: “Judges, especially judges of appellate courts and supreme courts, are among the best placed to help calm this social and cultural storm. Why is it so? Because judges are role models for those in and outside the legal profession, and they are our nation’s neutrals, masked by the reputation, credibility, prestige and power of the community. I humbly and respectfully suggest that we share a duty, which we can ethically pursue, to take advantage of our temporary and noble circumstances to help rekindle goodwill, common sense, and common decency among our warring factions.

– JoAnn Jayne, Chief Justice of the Navajo Supreme Court: “Within the bounds of professional responsibilities listed by the rules, lawyers and judges learn that Navajo thinking involves talking about things. In the Navajo tradition, government and governance was a matter of popular consensus, and the Navajo had a participatory democracy. It was, in fact, one of the purest democracies in human history. Long before the United States of America extended privilege and the right to vote to those who did not own property and to women, all Navajo participated in public decisions. Therefore, there is a strong and fundamental tradition that any Navajo can participate in government processes. “

– Michael Greve, Professor of Law at the Antonin Scalia Law School: “Now more than in less controversial times, I propose, courts – judges as well as judges – should strive to remain an institutional refuge from turbulent and confrontational politics. To this end, the courts must ensure the impartiality and equity of litigants, respect for the law (not as an instrument of social control but as the basis of a liberal order), reasoned decision-making and integrity. professional. Overall, the public appears to have confidence that the judiciary, federal and state, will in fact exercise these virtues. However, virtues require careful cultivation, especially under conditions of intense social conflict, high partisan polarization, and relentless public unrest over a supposedly partisan (federal) justice system. “

– Lance Wickman, general counsel of The Church of Jesus Christ of Latter-day Saints: “Lawyers can be role models of what it means to strongly disagree on matters of vital importance in the spirit of goodwill and even friendship. Oral argument before the United States Supreme Court takes on a more civilized tone because lawyers generally call opposing counsel “my friend.” Something of the same spirit should influence the way lawyers interact with each other. “

– Tony Mauro, semi-retired journalist and blogger at the National Law Journal: “Journalists who cover the courts are more than innocent bystanders. As fair and neutral as we may be when we write stories that begin with “The Supreme Court ruled today …”, we are playing a role that can fan the flames of division in the legal arena, especially if we are wrong. or if we exaggerate the divisions. which inevitably occur in an adversarial system where one side wins and the other loses. Many judges are still hesitant to interact with reporters about anything. But that must change. Whenever I speak to young reporters in the field, I urge them to contact the judges by phone or in person. If they can trust each other, the judge can even help the reporter understand a decision that is difficult to decipher. It is worth a try. It will contribute to better journalism.


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