I've been having some conversations that remind me how culture bound we are, and I mean particularly American lawyers.
Many years ago, a judge from a country I would rather not name except to say it was not one of the usual suspects, asked me very seriously how I could rule against the government that pays my salary?
My first reaction was that's what they pay me for. I'm like a public utility when I act as a neutral third party to settle disputes among people, but when the government's involved, my job is to keep the government honest. That's the reason we, Americans, value judges who are "independent." You have to be prepared to bite the hand that feeds you, Obviously. Plainly. Or so I've always thought.
The other thing we are raised to consider normal is that if a public official is voted out, he cleans out his desk and leaves. Of course he does, I think...but then I think of the dude who did it first, John Adams in 1801. Several states has mobilized their militias. He had a legal theory that he was still POTUS and plenty of backers. At the time, he despised Jefferson (he got over it later). But he cleaned out his desk and left.
I was beaten in an election once, and although I was not an incumbent, it broke my heart. However, it never occurred to me to do anything to undermine the guy who beat me. Nor did it ever occur to me that I should not plead a case in front of him. I did, without hesitation. I never thought for a minute he would take the campaign trail out on me and he did not.
There's so much we take for normal here that is anything but worldwide.
When things happen that don't fit our idea of normality, we are rightly exercised about it.
There used to be a district judge in my county who was partial to the law firm he came from and totally biased against men in child custody cases. There was a whole set of informal procedures to avoid him.
I was once called in to sit as a visiting judge in another county because the sitting judge had a conflict of interest. She had been the prosecutor who recommended a probation in a second offense DWI, and the guy went out and got in an accident while drunk. My opinion of DWI was well known. Drunk drivers have hammered my life twice, and of course it got in the newspapers when I started trying those kinds of cases.
I was in for the probation revocation. She said some stuff to me about hammering him and I joshed back, or thought I was joshing.
The prosecutor did not prove the matters set out in the application to revoke probation. I had to continue the serial drunken driver on probation. It was not a close call and it never occurred to me to admit triple hearsay over a defense objection, even though that was back when hearsay would work if there was no objection.
That was the last time I got assigned to that court. But I mention it as a man bites dog deal. Yeah, his conduct sure embarrassed that prosecutor turned judge, but nobody who worked to put me in office would expect me to relieve the government of its burden of proof, light as that burden is in a probation revocation.
I'm glad we consider some stuff normal that raises eyebrows in other parts of the world. I'm glad elections have consequences...even if a particular election was a bummer for me.
I kind of thought the Morton case here in Williamson County would cause more change than it did. But I suppose getting a judge removed and put in jail is worth something. What has not happened is a change in the voters, who believe the only proper background for a judge is in prosecution.
They'll learn.
Michael Morton was wrongfully convicted of killing his wife and spent 25 years in prison. His defense lawyers were quite skilled but the prosecutor withheld exculpatory evidence.
http://www.law.umich.edu/...
In the US, unlike in the UK, lawyers specialize in one side of the docket, and there's no getting around that defense lawyers have certain habits of mind regarding the Bill of Rights diametrically opposed to the habits of career prosecutors.
The government starts out with significant advantages. It does not need another advantage wearing a black robe.
Better to pick somebody who has been on both sides, but if you have to pick, the defense lawyer is more likely to hold the government to the standards we want to see.
Here in Texas, judges run in partisan elections. I don't get judicial assignments since retiring in Williamson County because I was elected as a Democrat. They barely allow Democrats over the county line, let alone in the courthouse.
Still, nobody would dare say a judge should never rule against the government and nobody would suggest that the voters don't get to put prosecutors on the Bench if that's what they want.
American exceptionalism is not total craziness just because some crazy people preach about it.