The cover story and a number of other articles in this issue of PLN focus on misconduct by judges. As this article goes to press the anointment hearings of Judge Sonia Sotomayor to the US Supreme Court are taking place in the US senate. Sadly, it appears she is a much more pro government judge that justice David Souter whom she is replacing and will most likely further shift the court in its anti criminal defendant and prisoner direction. For prisoners it is difficult to overstate the importance of the judiciary since, by definition, it takes a judge’s sentencing to send someone to prison and a judge’s order to keep someone in jail more than 48 hours. To the extent there are 2.5 million people imprisoned on any given day in the US, the vast majority of those detained are detained based on a judge's order.

Unlike some third world countries where the judiciary is corrupt the United States has an even more serious problem: a biased, results oriented judiciary. The corrupt judge can be bought off by the highest bidder and that has a certain egalitarian notion to it: come up with the money and you get the desired ruling. The biased judge is much more perverse.
They cannot be corrupted by money because they are ideologically corrupt. In the United States today this translates into putting form over substance to get the desired result which usually translates into ruling for the government against prisoners and criminal defendants and ruling for corporations against consumers. No amount of money will change that outcome.

The article by Jeffrey Deskovic illustrates this bias. Which is common in American politics as well as the judiciary. Asked about the death penalty, then candidate Barak Obama said he was opposed to “executing the wrong guy.” Most people are. Yet in Deskovic’s case, he was not facing the death penalty but was instead factually innocent and serving a life sentence for a rape murder he had not committed. Sotomayor was among the judges who denied his appeals. Thus the “wise Latina” reached the same conclusion innumerable white male jurists have reached: ruling for criminal defendants, even factually innocent ones is bad for your career and keeping them locked up can only advance it. Even if they are innocent. Sotomayor’s strongest supporters, senators Leahy and Schumer duly note she rules for the government and upholds 98% of criminal convictions and in federal immigration asylum cases by immigrants seeking to avoid deportation to countries where they face the likelihood of murder and torture, she ruled in favor of the government 83% of the time. These are her strong points pushed by her supporters which fully illustrate the bi partisan, consensus nature of America’s criminal justice policy.

Texas judge Sharon Keller’s disciplinary proceeding over closing the courts in Texas to ensure a death row prisoner was denied the opportunity to seek a stay of execution is another example of this results oriented judiciary.

Of course, there are many fine state and federal judges serving on the bench in the US. While the notion of an independent judiciary is fine, the reality is that faced with criticism or pressure many judges quickly fold and provide expedient rulings rather than constitutional ones. Judges who are ready to apply the constitution first and rule accordingly are few and far between. The reverse process is what occurs: figure out the desired outcome and go from there. Heroic giants of the American judiciary like Judge William Justice who desegregated Texas schools and brought Texas prisons into the 19th century; circuit judge Stephen Reinhardt and justices Earl Warren and William Brennan are among those who come to mind as examples of judges who analyze[d] the constitution and let the chips fall where they may. Often to the dismay of those who appointed them to the bench.

Law professor and former National Lawyers Guild president Michael Avery once commented that any judicial nominee or candidate should have to pass what he called the “Kleenex test”. Which meant that as a lawyer they had to keep a box of Kleenex on their desks for their clients to use who would cry in their offices because they were too scared, too brutalized, too marginalized and disempowered and desperately needed the representation of such a lawyer. Presently, anyone who can pass the Kleenex test has little chance of being appointed to the judiciary.

In the US today the quickest and surest way to a judgeship is via the offices of prosecutors and government agencies. Tellingly, being or having been a public defender, legal aid, personal injury or civil rights lawyer is deemed a disqualification. Thus the only type of “public service” that counts is service to the repressive organs of the state or its government bureaucracy. Government lawyers like Jay Bybee who drafted the torture memos justifying the torture of prisoners at Guantanamo have been rewarded with judgeships (he sits on the 9th circuit). Justices Sotomayor and Alito are among those who rose through the judicial ranks after stints as prosecutors. Why are there no public defenders or criminal defense lawyers on the Supreme Court? And very few in the lower judicial ranks?

A long time ago I observed that the only people who like the rule of law are the weak (presumably why court petitions are called “pleadings”); the strong hate it and see it as a constraint on their power. Since the powerful are the ones who appoint or elect the judges it is not surprising that they seek out those who will defer to that power and maintain the status quo. A strong judiciary should be the bulwark that protects the disempowered; all too often it is merely how the wealthy and the state exercise repressive power whether it means foreclosing on homes and farms, ensuring impunity for abuse and imprisoning millions.

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