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Judges Hear the Crocodiles Snapping

Gerald F. Uelmen is a professor at Santa Clara University School of Law. He was a member of the defense team in the Simpson criminal trial

The late Justice Otto Kaus, who graced the California Supreme Court from 1981 to 1985, once likened judicial elections to a crocodile in a judge’s bathtub. How does one decide cases without thinking about the crocodile, he asked. A more relevant question for judges today may be, how do you decide cases after watching the crocodiles chew up one of your colleagues? The past year has provided some stunning examples of courageous and conscientious judges becoming meals for angry crocodiles.

Justice Penny White was appointed to the Tennessee Supreme Court in January 1995. She participated in one death penalty decision, joining two other justices on the five-judge court in reversing a death penalty judgment in June 1996. By unhappy coincidence, White was the only Supreme Court justice on the ballot two months later. The governor saw an opportunity to gain another Republican seat on the court. He denounced White as a judge who was “soft” on the death penalty and “weak” on victims’ rights. His campaign succeeded, and she was removed from office after winning only 44.8% of the vote. Death penalty advocates in Tennessee were heartened by the message they had sent: Judges aren’t expected to follow the law in death penalty cases but to affirm the judgment.

Justice David Lanphier was appointed to the Nebraska Supreme Court in 1993, shortly after the voters passed a term limits measure by a 70% margin. In May 1994, Lanphier wrote the court’s unanimous opinion holding the term limits initiative invalid because it had not complied with a constitutional amendment that increased the number of signatures required to qualify the measure for the ballot. The sponsors of the initiative then mounted a well-financed campaign to unseat Lanphier, succeeding last November when he won only 32% of the vote in a retention election. Proponents of term limits in Nebraska sent a powerful message: Judges should not get hung up on enforcing the Constitution when reviewing a popular initiative; instead, they should get out the rubber stamps.

Disturbing evidence is mounting nationwide that judges are getting the message. In Alabama, where judges can “override” a jury in death penalty cases, trial judges override jury recommendations of life to impose death sentences 10 times as frequently as they override a death recommendation. Why are trial judges more likely than jurors to favor death sentences? U.S. Supreme Court Justice John Paul Stevens explained, “The higher authority to whom present day capital judges may be ‘too responsive’ is political climate, in which judges who covet higher office--or who merely wish to remain judges--must constantly profess their fealty to the death penalty.”

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In Texas, voters removed a respected former prosecutor with 12 years on the bench and replaced him with a lawyer admitted to the Texas bar less than two years before, who made a campaign pledge to uphold more death sentences. The death penalty affirmance rate for the Texas Court of Criminal Appeals moved from 86% to 96%.

In New York, a federal judge barred evidence in a drug case because the arresting officers lacked probable cause to search. His ruling became a political football in the presidential campaign, at which point he reversed himself, creating a new “crocodile exception” to the 4th Amendment.

The political vulnerability of judges in America has been heightened by a number of alarming trends. The tabloidization of the media and the reduction of news coverage to 10-second sound bites have rendered efforts to educate the public about judicial issues largely ineffectual. Grandstanding politicians who should know better, including presidential candidates, have devalued judicial independence by public derision and insults for judges whose decisions were unpopular. Special interest groups, while frequently appearing as “friends of the court” in pending cases, often become a court’s worst enemy through furious denunciations when decisions go the “wrong” way.

It’s a wonder we still have judges with the courage to live up to their oath to decide cases without regard to public clamor or threats of political reprisals. One such judge is Nancy Wieben Stock of the Orange County Superior Court. She managed to decide the child custody dispute between O.J. Simpson and the Brown family on the facts and the law, without first holding her finger to the wind. She now faces angry crocodiles, prodded by critics to whom she cannot respond because judges are forbidden to publicly comment on pending cases, especially where a closed hearing was involved.

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But we needn’t worry about Wieben Stock. She will emerge with her virtue intact, even though her robe may be in shreds. What we need to worry about are all the other judges who are watching.


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