Judges are not gods. But we must trust them to do their jobs, or do away with the institution itself.
February was a spectacularly bad month for the judging business. Last week Samuel Kent, a federal district judge in Texas, pleaded guilty to obstruction-of-justice charges in exchange for the state's dropping sex-crime charges. Kent may go to prison for three years for groping female subordinates, and there is talk in the Senate of his impeachment. Then Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, was charged by her state's Commission on Judicial Conduct with five counts of violating her duty and discrediting the court. Keller made national headlines two years ago for ordering the courthouse closed as lawyers for a death-row inmate scrambled to file a last-minute appeal, based on developments that day at the U.S. Supreme Court. Their client Michael Richard was executed, despite the fact that the Supreme Court granted another prisoner a stay on the same grounds sought by Richard.
Who is watching over the judiciary? Why do we give them such extraordinary power over our lives, then leave them to police themselves until and unless they actually break the law? This week the Supreme Court hears an important case about judging the judges: Brent Benjamin, chief justice of the West Virginia Supreme Court, refused to remove himself from a case despite the fact that one of the parties—the CEO of a coal-mining company—had contributed $3 million of his own money to Benjamin's judicial election campaign. (Benjamin later voted in favor of the coal company.) The high court must now address itself to questions of whether and when the out-of-control campaign spending in states that elect judges creates an "appearance of bias" on the bench. The rules about when judges are biased are in dire need of clarification. But most of the same justices deciding the West Virginia case have at some point themselves faced questions of self-interest, bias and the appearance of improper familial or professional influence. Just last week The Washington Post's editorial board groused about Chief Justice John Roberts's role in a case now pending at the high court to which the pharmaceutical giant Wyeth is a party. Wyeth and Pfizer plan to merge, and it seems Roberts holds Pfizer stock. Will that affect his judgment in the case? Each justice decides such recusal questions for himself, without publicly announcing the rationale. Except for Justice Antonin Scalia, who in 2004 penned a 21-page "Dear John" letter to the American people, explaining why he refused to remove himself from hearing a case in which Vice President Dick Cheney was a party, despite the fact that the two had just shared a highly manly duck-hunting adventure.
Enraged that he was being called out to publicly explain how he could hunt waterfowl with a party to an appeal, Scalia shared examples of great justices who palled around with great presidents and then concluded, "While the political branches can perhaps survive the constant baseless allegations of impropriety, this Court cannot. The people must have confidence in the integrity of the Justices, and that cannot exist in a system that assumes them to be corruptible by the slightest friendship or favor." Efforts to control the judiciary often run afoul of the ideal of judicial independence. Whenever the public attempts to tell judges or justices how to monitor their conduct, they run headlong into the argument that judges warrant special deference because what they do transcends politics and public opinion. That's why an attempt last week by a group of prominent academics and practitioners to manhandle the justices of the Supreme Court into line will prove futile. A group of 33 prominent legal thinkers sent a letter to Attorney General Eric Holder Jr. and ranking members of the Senate Judiciary Committee, proposing Supreme Court reforms that would bar justices from making their own calls about retirement (they would be demoted after 18-year terms and the chief justice would serve only seven years). Justices would lose the power to decide for themselves if they are too sick or ill to serve, as well as the authority to decide which cases they would hear each term. Since the Constitution provides that the justices shall hold office "during good behavior," these attempts to cut short their careers and pump up their caseloads will likely go ignored.
This is why, when Americans of every stripe bicker and advocate for greater control over the judiciary, judges hear the sound of crickets chirping. And perhaps this is what they should hear. In the appalling cases, like Judge Kent's sexual-harassment charges, they should be disciplined. But the problem is that mixed in with legitimate grievances about judges, there are often many sore losers or litigants who didn't get what they wanted. Judges are not gods. But we must be honest enough to admit that what looks like bias and corruption to us might just be a fallible human being doing her job. If we create too many systems that monitor the judiciary, we are really saying that we trust their judgment only when they agree with us. We need to separate the real problems of policing the judiciary from the generalized griping that they are old or elitist or out of touch. And in the end, to paraphrase Scalia, we must trust the judges to judge, or do away with the institution altogether. Lithwick is a NEWSWEEK contributing editor and a senior writer for slate. a version of this column also appears on slate.com.