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Saturday, December 15, 2007

Judicial Respect is Earned (MORE, CLICK HERE)

From The New York Law Journal

Perspective: Human Rights And Respect for Judges
by Barry Kamins

December 10 is not a holiday in this country, but it is a vitally important day around the world. On Dec. 10, 1948, the United Nations adopted the Universal Declaration of Human Rights. Ever since then, Dec. 10, Human Rights Day, reminds us of the importance of valuing human rights and how essential human rights are to world preservation. It should also remind us of the importance of the judiciary, and of respect for judges.

The third "Whereas clause" in the declaration proclaims:

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.

Article 8 of the Declaration provides that:

Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

These provisions underscore what we lawyers know, that human rights only have meaning when protected by an independent judiciary, whose role is respected by the other branches of government. Courts have no power to enforce their decisions, and depend upon a supportive and respectful legislature, and particularly executive, to give their decisions force. Indeed, courts have little power even to control their composition, and rely on the other branches to place jurists on the bench who will apply the law to the facts of a case in an independent manner.

The failure of both of these prongs is on display in Pakistan. President Pervez Musharraf, fearing a Supreme Court decision undoing his election to a new term, removed and detained the entire Supreme Court. Protests by lawyers and judges led to thousands more being detained. He then appointed his own Supreme Court which, not surprisingly, validated the election. That court remains seated in Pakistan, providing little comfort to Pakistanis that their human rights will be preserved.

In the United States, our executive and legislative branches have largely accepted the bargain struck in Philadelphia in 1787, understanding the importance of both maintaining the composition of the bench and following the courts' judgments. There is a third aspect to maintaining the judicial branch as a co-equal branch of government, and that is maintaining respect for the judiciary, so that it retains that respect in the eyes of the public it serves. If that respect is undermined, the public will challenge the basis of the judiciary's authority and the credibility of its decisions, and support for the rule of law can be undermined.

It is this third underpinning of the judicial branch, basic respect for its authority and its actions, that has been eroded in recent years. The erosion can be seen on a number of fronts. Efforts in Congress continue to strip the courts of jurisdiction to hear cases. Two recently passed laws, the Detainee Treatment Act and the Military Commissions Act, purport to remove the authority of judges to hear habeas challenges brought by foreigners labeled by the president as "enemy combatants."

The ability to obtain habeas corpus relief is a bulwark in the defense of human rights, and thus the elimination of this remedy forcefully shows how limiting the judicial branch can in turn curb the availability of human rights. In a similar vein, the federal sentencing guidelines, a creature of the other branches of government, sharply reduced the discretion of judges in sentencing. The U.S. Supreme Court recently found these guidelines not mandatory (United States v. Booker, 543 U.S. 220 (2005)); it remains to be seen whether Congress and the executive will move to reimpose them.

Beyond the institutional constraints being imposed, individual judges are being vilified regarding decisions they make. And strong efforts were made in South Dakota, fortunately beaten back, to subject judges to removal and possible jail time for making decisions considered invalid by a non-judicial commission (the so-called "Jail for Judges" initiative). The threat remains of similar campaigns in other states.

But disrespect for the judiciary can also take subtler forms. Both the federal and state judiciary have seen their salaries erode in recent years as compared with the general cost of living and what is earned by others in the legal profession.

In New York State, nine years have passed since judges received their last increase. A judicial pay increase seems to be a pawn in an intricate game being played by the Legislature and governor. In this game, those branches hold all the game pieces; judges have no leverage. As a result of the wait, and the mounting frustration, morale among New York's judges is low, and the public can see both the lack of respect in which these branches hold the judiciary, and the level of dependence that judges have on the other branches for their livelihood. We risk losing good judges and having potentially excellent jurists turn away from a judicial career.

It often happens that Human Rights Day occurs each year right about the time the Legislature convenes in an end-of-year session, generally to take care of unfinished business. So it is that later this week the Senate and Assembly are due to return to Albany. This is an excellent time to provide the long-past-due salary increase that our state's judges deserve. This action would convey respect for a deserving judiciary that we count upon to preserve our rights and to do justice. In a turbulent world, we must bolster our judiciary to encourage it to remain the firm protector of human rights and the rule of law that it must be in a civilized society.

Barry Kamins is president of the New York City Bar Association and a member of Flamhaft Levy Kamins Hirsch & Rendeiro


Anonymous said...

The propaganda campaign continues to obtain judicial pay increases by the minions of our soon to be former chief Judge Judith Kaye. Barry get a life!

Anonymous said...

I have seen judicial erosion, as a court employee of many years....long before the 1999 raise issue. This is just an excuse for the days and weeks off for many years, as well as several long lunch hours and departing court around 3;00pm for so many, many days! So i guess we must now pay them over 6 figure for a couple hours of work, because you know their (the judges) time and leave will never change!!!!!!! Is kaye going to monitor this issue of NO-SHOW BEHAVIOR, like she HAS" NOT" MONITORED THE JUDICIARY IN ANY REGARD ,SINCE OUR UNLUCKY DEMISE OF BEING FORCED TO HAVE HER AS "CHIEF"! I STILL SAY...RAISES....HELL NO! REFORM FIRST...HELL YES!

Anonymous said...

You bet your ass Respect is earned- ESPECIALLY IN THE JUDICIARY !!!!!!!!

Anonymous said...

You tyrants want respect? Earn it! And take off your black dresses!

Anonymous said...

Let's talk about if Judges deserve a salary increase, since they are entitled to nothing. What have they done to earn any increase? Taking up space and continuing to engage in corrupt practices are not qualifications for pay increases. I see nothing positive that would or could indicate any reason to justify any pay increase. A full and open debate in the public on this matter is in order. Why not put it on the ballot so that all the citizens of NY can vote on it? Who could or would object to that proposal?

Anonymous said...

This is an unfortunate statement that i am compelled to make. The JUDICIARY AND SUPERVISORY STAFF OF OCA, heavily condones sexual contact,favors and dirty talk, with the NY STATE OFFICE OF COURT ADMINISTRATION EMPLOYEES!If the empoyee resists, reports or removes themselves from such ancient abuse of power and victimization, they will eventually lose their job, be retaliated against and abused by "female" employees, jealous that they were not targeted! This is a FACT and OCA is a legitimate pimp for this behavior! If the judges want a raise...maybe they can let it not be in their pants!

Anonymous said...

Have read with interest Barry Kamins' article that the NYLJ (12/10) printed. He mentions Art 8 - "EFFECTIVE REMEDY" - they just don't get it, do they - hey stupid the problem is that across the country, citizen are not getting a "Effective Remedy" that's what this is all about! Judge$/Lawyer$ are abusing their authority and there is not any oversight. This oversight can not be just Lawyers allegedly selfpolicing any longer. It doesn't work! Any oversight must be predominately non-lawyers. They have the nerve to demand pay raises, they are drunk on their own hubris.

And Jail4Judges is not a dirty word. That is what an increasing number of people are realizing is the solution to a Judiciary that is out of control! SO GET USE TO IT! WE ARE WATCHING YOU GUYS LIKE HAWKS!
Meanwhile vist our websites @


I want everyone to think about this -

Have you ever been in court, any court, for any reason?

When it was over, and you were alone in the parking lot, did you have that feeling, deep down in the pit of your stomach, that...


Well it wasn't, the fix was in and your lawyer along with all the others including the Judge who is also a lawyer were all part of the fix! If you don't believe, just wait and see someday and then you will remember this!

Anonymous said...

When you go in a court room there they are sitting on thrones in their black robes. Our new dictators telling everyone what to do and what not to do. Now comes the Judges lead by Judy Kaye, hat in hand demanding a pay raise, they have gaul, that you have to give them. But, what right do they have to demand anything?

Anonymous said...

before I pulled the pin I know that the people in control hated the "Jail4Judges" crowd - but they are scared to death of them

Anonymous said...

You want respect, I agree that it should be earned, the mere fact that someone has the title "JUDGE" before his/her name doesn't mean they deserve respect. There are no titles in the good old USA!

Anonymous said...

The whole judicial thing is one big con run by the lawyers and a bunch of grumpy old men in black dresses on the American public, we windup being the suckers......

Anonymous said...

They want respect I want Justice. Once the problem is solve in an amicable manner. Pigs will fly and Kaye will disapear from this earth.

Anonymous said...

I too want Justice, but think that I shall not receive any from the American In-Justice system. The system is not fair, who every has the most money can buy the Judges and everybody else and then they win. It has absolutely nothing to do with who was right or wrong!!!

Anonymous said...

Damn a raise!! Make it a non-paying job.

Anonymous said...

Damn a raise!! Make it a non-paying job.

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