The American Bar Association compares judges to referees and umpires:
Judges are like umpires in baseball or referees in football or basketball. Their role is to see that the rules of court procedures are followed by both sides. Like the ump, they call ‘em as they see ‘em, according to the facts and law—without regard to which side is popular (no home field advantage), without regard to who is “favored,” without regard for what the spectators want, and without regarding to whether the judge agrees with the law.
The analogy is a good one. But, like referees and umpires, judges aren’t perfect.
What is Judicial Misconduct?
Every year, we hear something new about a judge’s unethical—and sometimes illegal—actions. Maybe it’s something as eye-catching. A recent example includes a judge being accused of trying to kiss a cop, propositioning court reporters and making sexually suggestive comments to prosecutors. Or maybe it’s something less attention-grabbing but equally problematic, like judges refusing to follow binding appellate-court decisions.
Judicial misconduct is surprisingly prevalent. The consequences for it, however, are surprisingly rare. In 2018, the ABA reported on a CNN analysis of nearly 5,000 judicial-misconduct orders. “Since 2006,” the ABA summarized, “fewer than 10 cases a year were referred to a special committee for a closer investigation, and in six of the past 11 years no judges were sanctioned for misconduct.”
Why Does Judicial Misconduct Matter?
This enormous disparity reflects a larger truth. Judges hold ordinary folks accountable for their actions every day while virtually never having to answer for their own. It’s the void between the two that results in Americans across the country losing faith in our justice system to achieve what it was designed to achieve: justice.
Just read “The Criminal Justice System is Broken and Can’t Be Fixed,” a headline on Psychology Today. Or maybe “American’s criminal justice system is broken,” the title for a bipartisan opinion piece—written by one Democratic and one Republican senator—on CNN. Or even a link to the CATO Institute’s piece entitled “America’s Criminal Justice System Is Rotten to the Core.”
Sally Yates, who served as the United States Deputy Attorney General under President Barack Obama and very briefly under President Donald Trump, got it right when it came to have confidence in the justice system: “It’s really important to me that the public have confidence in their criminal justice system. We don’t operate very well if the public doesn’t trust us.”
Every day that goes by with things as-is, that trust is broken even more.