Final Thoughts on JQC Amendment 3

I am not surprised that Amendment 3 passed. It was a bad idea with an unsavory political history. I did not personally know any lawyers who were in love with it. And my non-lawyer friends who asked me about it seemed persuaded that it was a bad idea. But, alas, I don’t know millions of people. I put it out there on Facebook. But Facebook is a solipsistic medium. I think my musings on Amendment 3 got a lot of amens but changed few minds.

The agency that governs judicial behavior ought to be independent from the legislature. It should be concerned with the neutral and dispassionate application of the judicial canons to judicial action. The JQC had its problems. It operated in extreme secrecy and its tactics were occasionally bullying. It was not a perfect agency. But there were less  intrusive fixes out there than then one chosen.

So, what is the future of judicial ethics? There is work to be done in the legislature to make sure that the mechanism is as effective as possible. I’ve said before that the State Bar can regulate the behavior of its members, whether they be engaged in the practice of law or the practice of judging. But the Bar appears to be politically compromised on all of this.

Ultimately judges are elected officials. And if they act in a way that is unbecoming of the bench, it is up to the people to regulate their behavior. And if the legislature, with its new powers, does a bad job with the JQC, the people choose them, also. What I say here feels like a cop out and perhaps a bit Pollyanna. From my experience, many educated non-lawyers have little idea what judges do or how it all works. I cannot count the people I have known socially who have asked the classic cocktail party questions about my job — “how do you do this for a living?” “What would you do if someone you were representing were actually guilty?” You know the other questions. But I have also had the experience of those same people coming to be clients or parents of clients of mine. And when they are in the system, going to calendar calls, preliminary hearings, motions, and trials, they are appalled at the experience. I do not know how to package up that life experience and communicate it to folks who may never know a courtroom firsthand. So, incumbent judges, even bad ones, are re-elected. And a Constitutional Amendment like 3 passes because it is written in a way that a voter in the ballot box thinks that it is a good idea.

Alexis de Tocqueville’s most famous line is that “in a democracy the people get the government they deserve.” Voters often get things right, as do juries and judges. But we are only as good as the information that we have. And when it comes to courts, the most informed appear to be the ones who are initiated either by being lawyers, serving on juries, or being actually indicted. How to inform others? I really don’t know.

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