Posts Tagged ‘Tacitus’

Federal Judges

May 27, 2011

Federal judges have a pretty good work life. They work in great majestic rooms and when they enter and leave those rooms, everybody stands up. They can only be fired by the United States Senate and, unless they get caught taking a bribe, that hardly ever happens. Their pay can never be cut. If they decide to retire, they can take “senior status” and make almost as much money as if they were still working every day. They get the best health care possible, United States Marshals for protection, law clerks for the drudge work of judging, and big offices, all paid for by somebody else.

But if you go to watch them at work, you’ll often be left with the distinct impression that these people are not happy. So, you may ask, why not?

Well, until you reach the august realm of the U.S. Supreme Court, federal judges are basically overworked. They handle large caseloads in an increasingly bureaucratized system. They must deal with lawyers, too many of whom are less than ideally competent. And, like bankers who spend their days saying “no”, federal judges spend a lot of time saying “no” to litigants in their courtrooms and putting other people in jail. Often, the judges might have preferred saying “yes” to litigants but couldn’t because of the controlling law. Worse, judges know that they will always make someone unhappy every time they make a ruling. It’s the nature of the adversary system. All that wears on them. They’re only human after all. Most probably suspect that Tacitus was right:

Judges are best in the beginning; they deteriorate as time passes.

Walton's Cottage in 1888

I’m not completely objective you understand. I spend my career trying to change the status quo and the judiciary is the first line of defense for the status quo. By design and by nature the judiciary is the most conservative of our governing institutions and – especially since Ronald Reagan – the federal judiciary has been populated mainly by judges personally conservative both by design and by nature. Often they don’t like attempts to change the status quo. Still, I find many violate the great fisherman Izaak Walton’s injunction in his The Compleat Angler,

If thou be a severe, sour-complexioned man, then I disallow thee to be a competent judge.

I once found a federal judge on a catch and release fly-fishing stream. This stunned me. It was the first time I’d ever seen a federal judge engaging in a harmless activity. It disordered my mind and for some weeks I felt unbalanced, like I’d seen a ghost gibbering in the streets. I watched the apparition for a while, studying the thing in my mind.

I’d been a trial lawyer for a couple of decades by then and had learned that no evidence is less reliable than eyewitness testimony. Our eyes fool us all the time so I knew that they might be fooling me now. The first thing I did was get out my camera and take a picture of the thing. But, upon reflection, I realized that any apparition capable of assuming the form of a fly-fishing federal judge could easily rearrange the pixels in my camera so I couldn’t trust any photographic evidence.

I determined to go down there and confront the thing up close. I don’t claim that I wasn’t terrified as I walked down that slope to the river: I was, but I went down there anyway, expecting at any moment to be swallowed by a wormhole and instantly transported to some place on the far side of the universe.

But nothing happened. I walked right up to that federal judge apparition and it spoke to me! Called me by my name. Shook my hand. Asked how the fishing had been for me. Wanted to know what fly I was using.

Even smiled once.

So I knew it wasn’t real. I got out of there as fast as I could.