America's judges on trial

JUDGING, these days, seems to be a profession under fire. In Chicago and New York, judges are convicted of serious felonies; in Philadelphia, 15 judges of the general-jurisdiction trial court come under indictment for corruption.

Rural America, too, feels the curse. In Vermont, of all places, three of the five Supreme Court justices are charged with illegal favoritism. A Nevada federal judge goes to jail for tax evasion.

Apart from the criminal charges, judges from coast to coast face vehement public dissatisfaction with the way they do their job.

The Massachusetts Judicial Conduct Commission is investigating accusations that four lower-court judges harass litigants.

Meanwhile, a bitter campaign persuades California voters that the state's chief justice and two associate justices are impermissibly softhearted when applying the criminal law; all three lose their seats - and their reputations.

This panorama, however suggestive it may be of judicial decay, is in fact not unusual. Americans have always engaged in periodic efforts to improve public service by criticizing, suing, or even prosecuting public servants, including judges. Judicial metal, we seem to believe, shines best when well scoured.

Because judges are only specially selected, highly skilled public employees, the public merely states the obvious when it insists that judges meet exceptional standards (including, but obviously above and beyond, strict compliance with the criminal law).

This is an old legal tradition. Francis Bacon and Richard Bethell, each a lord chancellor, destroyed their careers by indiscreet financial transactions, Bethell's fall evoking from Queen Victoria the comment ``It is much better to be good than clever.''

Closer to us in time and space, 50-odd years ago the United States Court of Appeals for the Second Circuit (then as now considered, at worst, only slightly below the Supreme Court) lost Judge Martin Manton for bribery.

In the present run of judicial accountings, what registers is not so much the individual incidents as the large number of serious bad acts involved.

Put aside California and Massachusetts, where the dissatisfaction centered, respectively, on judicial philosophy and judicial bad manners.

The other situations, however, involve accusations or proof of mischief in wholesale lots. Whatever the merits of the cases, they certainly do not permit only-one-bad-apple analysis.

Guilt in these judges suggests the wholesale decay of an institution which, despite the Mantons of this world, Americans have always considered to be somehow better than the society in which it operates.

The very language and trappings of the courts illustrate the veneration we confer on the judiciary. We speak of a lawyer's being ``elevated'' to the bench; we address judges as ``your Honor,'' with a capital H; and we deck them in robes to emphasize subliminally their place as priests of our secular true religion: the Law.

Thus, though we may deplore examples of moral turpitude in other respected professions, as for instance, the current examination scandals concerning the Massachusetts police and the Los Angeles firefighters, that corruption does not smite us with the impact we feel on learning the mere allegations that half a metropolitan trial court is on the take, or that most of a state's high court has condoned hanky-panky, or that four lower court judges are verbally polluting their courtrooms.

Our pain, in fact, does not wait for proof of guilt. We concede that an accused judge is, like any other defendant, presumed innocent. Yet our relation to the judiciary imposes on the judge a higher norm: avoidance even of accusation.

This is of course an impossibly high standard. No one can ensure such freedom; nor, were it possible, would we permit it?

Yet if the increase in accusations engenders, or even echoes, a decreased confidence in or respect for the courts as an institution, the current spate of judicial arraignments may indicate something more troubling than that some judges are flawed human beings.

Public insistence on judicial honesty and propriety, enforced by a public willingness to criticize judicial conduct, strengthens the rule of law. When, however, the public comes to believe that the judiciary is not keeping the faith, the premise, false though it may be, destroys that public confidence in the judges without which no law can rule.

Hiller B. Zobel sits on the Massachusetts Superior Court.

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