Judging the Judges

It’s a dream job, right? Comfy chair, no wardrobe hassles, complete authority over all who cower before you.

Everybody even jumps up each time you enter the room.

But the job profile for judges is changing fast. And not for the better.

Attacks like the firebomb hurled at a judge in an Illinois courtroom Tuesday remain rare. But more and more ordinary citizens are second-guessing judges’ decisions and taking action when they disagree. Just one unpopular ruling in a high-profile case can end a lengthy, respected career. Or blight one that’s just beginning.

In Orange County, the judge who allowed O.J. Simpson to reclaim his two youngest children is battling a citizens’ recall attempt.

In Los Angeles, the judge criticized for sentencing a shopkeeper to mere community service after she killed a teenage girl has stepped down in her first term on the bench.

All over America, judges are enduring critiques from individuals, community groups and, in one instance, even the White House.

“I just spent two hours with 75 judges from 29 states,” says V. Robert Payant, president of the National Judicial College in Reno, Nev. “And the sentiment was almost unanimous. They feel under great pressure from the public. They do not feel respected anymore.

“It’s a very serious problem. If society does not accept decisions of the courts as fair and just under law, our entire democracy will be lost.”

And so will a few more judges.

Consider the case of Roderic Duncan. One day he was a respected judge with 20 years on the bench. The next day he was a 60-second sound bite on the news, accused of being unfair and unfit for his job.

And all because of one high-profile divorce case, in which he locked horns with the owner of a local Buick dealership.

The car man landed in Duncan’s Alameda County courtroom with seven cartons of documents and 15 motions. On most of them, Duncan ruled against him.

Suddenly there were big ads in the paper announcing a committee to recall Duncan. Then newspaper and TV stories detailing the dealer’s complaints. Then pickets in front of the courthouse, and a parade of rented hearses that delivered the official notice of intent to unseat him.

Duncan says he wound up “sitting on the side of my bed and weeping each morning.”

The recall effort failed. Duncan retired two years later in 1995, as planned. But the eight-month agony was “the worst period of my life,” he says. “It showed me the downside” of being a judge.

That downside is becoming increasingly apparent.

The number of instances in which a single decision derails a judge’s career is growing dramatically, judicial experts say.

That’s not because of any new laws making judges more vulnerable to attack, but because the public seems suddenly more willing to utilize the old ones.

The reverential mystique that used to surround judges is fading fast, the experts say. And the public’s quiet acceptance of unpopular rulings is fading along with it. Add to that an increase in watchdog groups that monitor courtrooms and keep track of decisions, and you have a whole new ballgame for the judging profession.

“A judge has to do what’s right, not just what is strictly legal,” says Tammy Bruce, radio talk show host, activist and co-founder of the Women’s Progress Alliance. “If the law prevents a judge from making the correct decision, then, hey, let’s change the law.”

Bruce is currently aligned against Orange County Superior Court Judge Nancy Wieben Stock, who was a department of justice attorney before her appointment to the bench by Gov. George Deukmejian in 1990.

Before she ruled that O.J. Simpson could reclaim his children, Wieben Stock was known as a flute-playing, church-going mother of two with a fast-track career in progress. She was rumored to be on Gov. Pete Wilson’s short list for appointment to the appellate court.

Then came the Simpson case and Bruce, who is spearheading a recall effort because “we do not think her ruling was in the best interests of the Simpson children.”

Wieben Stock’s life has changed. Her church congregation has started a prayer chain for her. The Orange County legal community is holding meetings and fund-raisers to assist her. Even her husband, attorney Ronald Stock, has made a statement to explain that his wife is “very child-oriented” but that she could find no evidence that would allow her, under law, to rule differently than she did.

The appellate court appointment rumored to possibly be hers has gone to someone else.

The judge cannot defend her decision because the code of judicial ethics prevents judges from discussing specifics of cases.

Los Angeles Superior Court Judge Joyce Karlin faced a similar predicament. She resigned in March, five years into her first six-year term, saying she wanted to spend more time with her family.

But there is speculation among court watchers that she may have resigned because her career was blighted by one case. Her first big trial was that of Soon Ja Du, a shopkeeper who in 1991 fatally shot Latasha Harlins, a 15-year-old high school student Du thought was stealing.

Du was convicted of manslaughter and Karlin sentenced her to four years probation and 400 hours of community service.

The sentence enraged some citizen groups, who considered it far too lenient. They tried to oust the judge in a recall effort, which failed by a narrow margin.

“Judge Karlin probably had to raise something like $300,000 to fight off that recall,” says Jerry Nagle of the National Center for State Courts.

After the Du trial, Karlin transferred to juvenile dependency court, where she has been ever since. She declined to be interviewed for this story because, she said, she “did not like the way her retirement had been presented in The Times. And I just don’t want to subject myself to that anymore.”

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It is not the “correctness” of judges’ decisions that absorbs legal scholars. Judges are, after all, only human. The courts of appeal are set up specifically to address debated decisions.

But the 1990s rush to recall poses philosophical problems with which academics, attorneys and judges must now deal.

At the top of the list is the survival of America’s democratic system.

The freedom of judges to decide cases according to their view of the law, without fear of losing their jobs, is basic to the independence of the judiciary branch of government. And that independence is a prerequisite for American democracy, say experts on government and the law.

“If the public hates a decision, of course they should criticize it. That is also a part of democracy,” says Erwin Chemerinsky, professor of constitutional law at USC. “But they should let a court of appeals decide whether to overrule the decision.”

Threatening to recall a judge because one decision is unpopular can only lead the country downhill, he says.

“Judges must decide cases according to law, no matter how unpopular their decisions, or how angry some citizens become.” That is how this country became what it is, Chemerinsky says.

He cites the “judges in the South in the 1950s and ‘60s who ordered desegregation despite enormous popular opposition. It was a triumph of judicial independence.”

Retired Superior Court Judge David Rothman, on the bench for 20 years, teaches ethics to new judges and has written a book on the subject.

“This inappropriate scrutiny of judges has become a major worry,” he says. “Judicial independence is the key to integrity, which is the cornerstone of judging.”

But it sometimes takes incredible courage to be independent, he adds. And the public ought to try to understand.

Rothman and many others interviewed for this article mentioned U.S. District Court Judge Harold Baer, who ran into problems after a 1996 decision in New York.

In that case, police saw four men loading bags into a car trunk. The men ran as police approached, which made the officers suspicious. They searched the trunk and confiscated 80 pounds of cocaine and heroin.

At the trial of the confessed drug courier, Baer ruled that the confiscated drugs must be excluded as evidence. He said there was no probable cause for police to search the car simply because the men ran away, since many in that neighborhood routinely run from police, whom they view as “corrupt, abusive and violent.”

Baer’s supporters said the U.S. Constitution “is very clear on the issue of search and seizure, and Judge Baer was simply upholding it.” But there was an immense outcry, including a statement of disapproval from President Clinton.

Baer reversed his decision almost immediately after the president weighed in.

“Baer is a federal judge, a man with a lifetime appointment to the bench,” Rothman says. “But as soon as the president joins in, he changes his mind. Did he bend to public pressure? If he did, even though he has a lifetime job, can you imagine the stress and pressure on a mere little old county judge in California, who has the threat of recall hanging over him, and who at best has a six-year term before an election rolls around?”

Rex Heinke, an attorney and former chairman of the judicial election evaluation committee of the Los Angeles County Bar Assn., says the “increasing public scrutiny of the courts” could be a good thing, because “almost no one challenges judges, or looks at what kind of job they do.”

But scrutiny ought to be based on knowledge of the system being scrutinized, he adds. And that’s where the public often fails.

Judges think we’re moving toward a time when the public will judge the judges, Payant says. And where any controversial decision means they’ll be opposed in the next election by someone who may not have the qualities to be a good judge. The number of contested judicial elections is higher than it’s ever been, he says, and the amount of money that sitting judges have to raise to conduct election campaigns is also higher now than ever.

Some judges deserve closer public scrutiny, Rose Colombo says. Frustrated by her divorce proceeding--now in its 10th year--she formed Women Fight Back for Legal Justice in 1989. The Fountain Valley group documents the stories of people who have suffered legal abuse, she says. Her first six-year report was delivered to the governor and to the council on judicial performance in July 1995.

“We are not talking about all judges being unfair. Our documentation shows the same judges’ names keep coming up. And it’s those judges who have to get the message,” she says.

Barbara Swist, founder and executive director of Consumers for Legal Reform in Costa Mesa, agrees that some judges have reason to worry.

Her 5-year-old organization sends monitors to the courthouse, and keeps written evaluations of various judges on file. It also accepts written complaints from anyone who feels a judge has not done a fair job.

“We look for repetitive misconduct or inappropriate rulings. When we find that, we confront the judges. They generally expose their bias and prejudice in their response to us, and we have that on file too. We know who these judges are, and come election time, we have something to show the public.”

Swist is not exactly a total fringe player on the judicial scene. She has reportedly met with Wieben Stock, although she will not confirm that. And she is involved in trying to bring about many kinds of judicial reform.

She favors “a panel of citizens to oversee judicial decisions, because so many judges are so out of touch with reality.”

Swist would also like to see computers replace judges in some civil matters. “If all we’re getting from them is a decision that follows the letter of the law, then computers can do that more effectively, less expensively and with less insult,” she says.

“There is a huge movement for judicial and legal reform going on in this country. And it will lead not to the end of democracy, but to a judiciary that is fair and just,” Swist says.