Black-Robe-Itis: Bringing Judges Back Down to Earth--Season 01 Ep 01--Transcript

Black-Robe-Itis: Bringing Judges Back Down to Earth--Season 01 Ep 01

May it Displease the Court Podcast [Transcript]

Lee: Welcome back---well I guess not back--but just TO the first episode ever of May it Displease the Court

Mary: a podcast about how deeply and totally SCREWED UP the court system has always been

Lee: but especially under the Trump administration

Mary: yes. Since Trump’s election I have wanted to start this podcast to bring more people into the discussion about the plot to remake the judiciary and the laws that govern Americans and shape our way of life as well as to strategize about how we can fix this broken system.

Lee: and you brought me on board because i’m a rhetoric nerd and I didn’t know anything about this judicial takeover shit but now that I do, it’s all I can think about. 

Mary:  it’s absolutely disgusting what’s happening with big money and republican politics...but before we get carried away...we should probably introduce ourselves.

Lee: Ha. Right. What’s up y'all ...I’m Lee. Pierce. Talking to imaginary people is so weird. Anyway, I am a rhetorician at a state school in New York. I study rhetoric, which is basically how we use words and symbols to make things true and false that aren’t inherently true or false. So, for example, later Mary is hopefully going to go on this rant that I love about how courts are physically set up to perpetuate this flawed system of reverence and obedience. That’s basically rhetoric--looking at how something we think is natural, revering judges, is engineered through language and ritual and physical space and so forth. Your turn!

Mary

• I’ve been a practicing attorney for about 17 years
•  vast majority of that work for indigent clients, 
• which means that I am appointed by courts to represent people who cannot financially afford to hire their own attorney, because the court is required to provide defense for you if you are too poor to hire an attorney.
• Now I only handle court appointed appellate work and I have been a public defender, but now I am independent, I don't work out of a particular public defender's office. 
• KIDS!!!

Lee: Alright, so, this is episode one and we’re going to look at what we think is the fundamental flaw in the court system, which is the myth of objective, impartial, independent judges that hand down justice from on high.

Mary: Absolutely. I, like most people, bought the myths about the legal system and the Judiciary packaged and sold through education, entertainment and the media. 

And especially, when you go to law school do you really become indoctrinated in the notion that the law and the Judges should be respected to the point of reverence. 

Lee: Yes, so you’ll give us an insider look into that whole thing and I’m going to connect it to some nerdy rhetoric stuff I learned about the difference between the Book of Judges and the Book of Kings in the Bible. Even though the Bible replaces Judges with Kings, it still treats the Kings as these mythical godlike beings.

Mary: right, except to make things worse, we no longer just have that problem. We now have big corporate money from the Koch brothers 

Lee: and other far-right elite corporatist Republicans who are buying judges and plotting to ruin democracy.

Mary: well...I’m such a lawyer...we can’t really say they’re doing anything. We strongly suspect they’re doing it.

Lee: okay. That’s fair. And since you brought it up, now is a good time to point out the difference between a lawyer and a rhetorician. 

A lawyer, like Mary, is going to be more concerned with language that accurately represents the situation at hand. Whereas a rhetorician, like me, is more concerned with using language to make an impact, with using words and symbols to construct the reality I want others to adopt. 

MARY: That’s really interesting because the courts use words and symbols all the time to construct their reality, which is something that people don’t think nearly enough about because, well, it’s not meant to be noticed.

Just the physical layout of the courtroom tells you that the Judge is most important. She sits high above everyone else. When you had a side-bar conference my eyes are at the Judge’s hands. It feels like I’m a small child looking up at a powerful person. You have to address her formerly, you ask permission to speak, to approach the bench. There is security, bailiffs that control the courtroom and prevent you from going near the Judge without permission. There is a staff of clerks making sure the Judge has all the files needed for the docket, which are the scheduled cases for the day. You can’t just walk into court and expect a Judge to hear you, you need to be on the docket in order to be heard. These procedures are done for efficiency, and security, sure, but they also convey the power differential between the Judge and everyone else. 

Only when you're appearing regularly do you kind of see behind the curtain and you're like oh my God this is just a regular person who screws up.  They don't necessarily remember what's going on in case, they didn't read the paperwork, or they are distracted because they are checking sports scores on their computer during court, or they rush or cut off an argument so they can get to that spin class in between morning and afternoon dockets. And now that I’ve been practicing for around 15 years I am seeing peers running to become Judges and it is not always the people you hope would be running. I want the hardest working, most humane and compassionate, near legal geniuses to be sitting on the bench. Instead there are often thoroughly mediocre, but ambitious or politically connected attorneys running. And they are not always super smart or hardworking because they know they can hire a really smart law clerk to write “draft” opinions and to help them research, which can make them look really smart. And to be honest, at least those people who subscribe to the motto work smart, not hard and that isn’t always bad. As attorneys talk amongst ourselves and speculate whether they are going to get “black-robe-itis” which means are they going to put on the black robe and instantly be smarter in their own minds, and expect us peons to bend the knee. In my experience, very few, in fact I can think of only one, maybe two who were unchanged by the power of the black robe. 

As attorneys we rarely if ever criticize Judges, publicly,  so this podcast is way outside my comfort zone. We keep our mouths shut or more accurately, heavily filtered mainly for self-preservation, because Judges are human and they can be petty and vindictive. If a Judge doesn’t like you, then he can take it out on your client, rule against them, refuse to let them out of jail, sentence them to more time and you don’t want anything you do to negatively affect your client. 

And no way in a million years could you EVER call a judge out for being wrong. It’s basically impossible and that’s the biggest flaw in the entire system. Not just that Judges expect obedience--so do lots of authority figures--but that you are some kind of Benedict Arnold if you even suggest that maybe a judge has made a mistake or something.

Mary

So this happened to me when I was a baby Public Defender, or PD if you want to know the jargon. When I got the job the attorney who trained me had been a PD for about a year and she was being promoted from Town Court to City Court. Town courts are the typically small courts that handle all the minor criminal matters like misdemeanors, simple harassments, disorderly conduct, trespass, initial felony appearances and traffic tickets that happen in the town. City Court is the same except the volume of cases was much higher. I followed this barely more experienced attorney around for two weeks and then she handed all her files, about 300-500, off to me and they were mine. That was intimidating, all these people could go to jail, their liberty is in my hands. 

Oftentimes Town Courts are at night, and so I had court in this really small town, I checked the docket, made sure I had all the files assigned to me with me and I drove to court. I haven’t met any of these clients yet, bc I’m new, and I’m still figuring out how to talk to them before court while still handling the cases that are being called. It’s a real juggling act. So you end up talking to clients while court is going on and the Judge is handling other matters. As I am talking with a client I hear the Judge call case and it is a guy charged with a disorderly conduct violation. The Judge immediately starts talking to a guy and trying to get him to plead guilty and the guy is arguing with the Judge and I realize that he is one of my clients. So I abandon the client I was talking to and race down towards the front of the courtroom calling out. Excuse me, this is my client. And the Judge goes, no he isn’t. And I’m really confused by this and I look at my files and I ask the guy his name and it matches and the file says disorderly conduct. So I hold the file up and I repeat, yes I do represent him. The Judge yells, ``No your office never represents violations.” The Judge cuts me off and accuses me of having some sort of personal relationship with this guy (who I had never met before) and that I was wasting public resources representing him when I shouldn’t. Now, I’m getting a little mad, so I respond “what am I in some sort of twilight zone? Violations are like 30% of my cases. I’m not doing this guy a favor, I have never seen him before in my life.” I turned around to look at the courtroom full of defendants, and other attorneys hoping that a more senior public defender happened to be in the courtroom to handle one of their cases and they could come rescue me from this insane Judge who, even though, he was an old man who must have been a Judge for a while seemed to have no idea that PD’s handled violations in his court. I just could not wrap my head around how he didn’t know this was so routine.  Nobody preps you for these moments, I was looking for someone else to help me stop him from railroading my client into taking a plea, but there I was the one who was supposed to stop it. Luckily, he finally realized he was wrong and he adjourned the case and let me represent my own client. Only afterwards when I went back to the office did I learn that this Judge wasn’t even an attorney, he sold like tractors or time shares or something, but he had the black robe on, he was old, like grandfather old, and I just expected that he knew what he was doing so it was really shocking when he had no idea and was trying to deprive my client of representation.

Lee - David & Goliath

As a civilian I was absolutely astonished that this kind of shit could happen. It doesn’t vibe at all with how I have learned to think about judges. So I did a little bit of digging into the rhetorical roots of the modern legal system and wound up, not surprisingly, at the Bible because 99% of modern American democracy is Judeo-Christian.

And what I learned is that our entire cultural reverence for judges is basically hard wired into our legal mythology. And it shows up, not surprisingly, in one of if not the most famous Bible story: David and Goliath.

Now, most people know David and Goliath as a story of underdog triumphing. But that’s actually not it’s primary purpose in a stricter Biblical context. Prior to the David and Goliath story, which happens, like, mid-bible, God communicates his will to his people using, you guessed it, Judges. They were perfect beings, they were honest and fair and they didn’t have any offspring or any impure motivations like measly humans. 

Then mid-Bible god decides the people would like a king--god doesn’t really want a king but the people do and generally he wants to keep the people happy--i guess the judges were just too noble and perfect or something. So god chooses Saul. 

And Saul, the first King, is the worst. The opposite of the Judges. Paranoid and cowardly and obsessed with keeping his power. So when the Philistines threaten his people--God’s people--Saul runs and hides and David is left to defeat the Philistines chosen warrior: Goliath. 

Then David eventually becomes King. And he’s a pretty okay king. But the rest of the kings are awful, just like Saul. And the bible is pretty clear how very petty and ungodly these kings are in stark contrast to these wonderful judges that came before them. 

It’s almost as if, because the judges in the bible disappeared and we got stuck with these kings, that we are nostalgic for this thing we never had that the bible made look so amazing.

But the one place we do get that lost amazing noble form of leadership is, of course, the courts! Thousands of years of biblical fangirling over the Judges isn’t just going to disappear, it’s going to show up in our modern institutions, just like you’ve been saying Mary. And that extra layer of history and mythology just further entrenches how hard it is to criticize judges or suggest that the courts are just like ANY OTHER institution and need to be held accountable for their mistakes.

Mary: Something that always bothered me when I walked around the courthouse was seeing families gathered outside of courtrooms, sometimes with a clergy member praying and asking God to ensure there was a fair trial and justice would be served. And I knew who the Judge and the prosecutor and defense attorney were and that there was little hope that the trial was going to achieve justice. The courthouse is the realm of Saul, of man, not of god. Does that mean it is always awful? No. The current, broken system does occasionally give the win to the little guy, but it is rare, so rare that every time it happens I get an email like WooooHOOO so-in-so got a win!!! And you think, that can be me, and you kill yourself and you think the law and the facts are on your side, and you show it to other defense attorneys and they agree, yeah this is a good one, and you think you might win, but you also acknowledge that you will probably lose anyway, and then 99 times out of a hundred you do lose. Really your client loses. But that one win, Don had, or some attorney across the country had, gives you hope that a broken system will eventually right itself. And we have been far too patient, to the point where the incredibly rich are extremely close to exploiting the weaknesses in the design of the legal system, which has virtually no oversight, to rig it so that the little guy will never win, and by little guy I mean everyone who isn’t already powerful. 

Lee: I was actually so taken aback by your perspective on the courts that I went looking to see if anyone was talking about this in secular mainstream media--Op Eds, whatever, and I couldn’t find ANYONE writing about this problematic reverence for Judges. Except a local newspaper, the Ledger-Enquirer from Columbus Georgia of all places. And this is what it says (link in show notes):

Why judges are better than kings

“Of the 40 Israeli and Judean kings between David and the exile of the Jewish people, there were 30 evil kings, and 10 good ones. Throughout history, we’ve seen kings and emperors of all types, most of them as wicked as those of Biblical days. Thankfully, American patriots decided we didn’t need a king…we could make our own political and economic decisions. Our Founding Fathers created a Constitution which accorded a lot of power to the Judicial Branch, understanding its importance. 

Judges today are different than kings, because they get involved in the community, volunteering for civic service, interacting with the people, making a difference on the bench and in the boardroom as well as in the public. 

Like their Biblical counterparts, it is our American judges who work hard to assure our freedoms, more than the modern-day authoritarians who flatter their audiences but govern in a most arbitrary fashion.”

Mary - I think it is really arguable whether most Judges actually work hard to assure everyone’s freedoms given their preference for those who have money and power over the rights of the poor and politically powerless. That has always been a problem, but academics and investigative journalists have uncovered a much larger problem. 

 The Koch Brothers. One is dead but Charles is still kicking and he runs a huge corporation with lots of businesses, like Brawny Paper Towels but they’re are a huge fossil fuel company, they have lots of pipelines that pollute the planet, and he has been waging war against the climate change bc is threatens his vast fortune. These assholes can never have a big enough pile of money. 

Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right

Mary According to Jane Mayer in the book Dark Money, the Koch brothers have hand-picked other wealthy conservatives to “invest” with them and created a private political bank. The top 0.01%. According to Mayer, their goal is to create something called the “mercantile Right” to take back and if possible, take over American politics. 

Lee: the mercantile right is a quaint word for what I call them: the corporatist elite who essentially want to buy their way around the fundamental principles of democracy. 

Mary: Exactly who is in the Koch network is intentionally kept secret. They are told to destroy all copies or paperwork, to shred notes, keep meetings confidential, say nothing to the news media and post nothing about meetings on social media. 

Since the 1980’s they have been trying to change the way Americans think to  make them think there should be almost no government. They argued for a limited government, drastically lower personal and corporate taxes, minimal social services for the needs, much less oversight for industry, particularly in the environmental arena. They claimed to be driven by principle, but “their positions dovetailed seamlessly with their personal financial interests.” 

They did this by politicizing and weaponizing philanthropy to fund subsidized networks of seemingly unconnected think tanks and academic programs programs at universities, a factory to create alternative facts, write boiler plate legislation to give to Congressmen or state legislators, publications, news organizations and filled it with their own ideologies. 

They then went about changing how America voted, using their vast fortune to impose their minority views on the majority, spawned advocacy groups to make their arguments in the national political debate. They hired lobbyists to push their interests in Congress and operatives to create made up “grassroots” groups to give their movement political momentum on the ground. They financed legal groups and judicial junkets to press their case in the courts.

Lee: Alright, I’m thinking about the system and I'm trying to wrap my head around all the stuff. It sounds like we've got basically a three-way split. 

First there’s level one, which is imaginary, where we have a judge and a vision of them as religion deities sitting up on high in these robes imbued with these Divine powers to always know and do the right thing. They’re totally impartial, free of bias and that’s the narrative we’re sold because we need the system to appear infallible or else people won’t use it. 

But the truth is that they’re really just people in Robes and they’ve got all of the flaws of regular people, even smart well-educated people, like prejudice and bias. That’s kind of our level two that, historically anyway, has been ignored because we keep getting told about level one.

Then the Trump Administration adds a new layer, layer 3, because at least with biased people there's no money involved so yeah you might be a crap person who's going to make a bad decision because you just have a blind spot about race or something. Like your person who demanded your obedience; that is just normal human flaws that you had to navitage.

Then what happens when these anti-democratic revolutionary corporatist libertarians Trump McConnell Koch Brothers and all the money then that’s the next layer of the problem. 

We essentially have two sets of problems that are related but need to be treated distinctly. One is the myth of judges and therefore the court system as Divine unbiased and Prejudice neutral you know impartial and Beyond criticism but at least they’re not up for sale. Like me as a college professor, I'm biased and have my flaws and my beliefs. But I'm still what you might call Independent --nobody's paying me for the words that come out of my mouth. I’m still part of the marketplace of ideas 

The second problem layered on top of the first is judges that are no longer independent; they're just basically for sale--just corporate stealth right minion cronies. 

Mary

I don’t want to say that I am grateful that the Koch network and Dark Money are trying to destroy democracy and the Judicial branch, but if they hadn’t launched their stealth attempt to completely dismantle it and make it you know something that possibly can't be fixed.  I don’t know if I would have had the courage to publicly criticize the judicial system, for fear of alienating Judges against me and my clients. 

Now I think it is critical that we recognize what is happening and do what we can to protect our courts, but I also don’t want to advocate for a preservation of an already broken system.

Mary --Fed Bar Association

To be clear, the idea of an independent judiciary has a lot of merit.  The judicial system was set up with the idea that Judges were independent and that they would be a distinct branch of government that had some distance from the people and could dispense justice, from a place of wisdom, which the people would have to follow even if they disagreed.  

I think the Federal Bar Association gives a great synopsis of this intent; I will read a portion. The Federal Bar Association, by the way, is a professional organization of attorneys and Judges who practice in Federal Court.

Statement on the Rule of Law and an Independent Judiciary

“The stability of our constitutional democracy rests on public confidence in all institutions charged with enforcing our laws. The just enforcement of law involves the well-grounded application of facts to the law and not political affiliations, personal interests, or retribution.  Departure from this principle erodes public respect for the fairness of our legal system and equal justice under law.

Judicial independence, free of external pressure or political intimidation, lies at the foundation of our constitutional democracy. An independent judiciary must be free of undue influence from the executive and legislative branches and must remain committed to the preservation of the rule of law and the protection of individual rights and liberties.”

Mary

Judicial independence is a great idea, but it works only if we are dealing with Judges who want to uphold the Constitution. The problem we are running into now and we will develop this more in future episodes is that we can’t assume that Judges connected to the Koch network are working to uphold the Constitution. 

The courts run on the honor system, Judges are supposed to be able to police themselves, and each other and well, we know how well that works in other industries, we only thing it works better with Judges bc we think they are somehow better than we are, god-like, and so we don’t think about them much at all.

Attorneys who may know more about a Judge and maybe how they use their power to hurt the powerless really aren’t able to speak out so we keep our mouths shut. The public got a rare chance to see just how temperamentally ill-suited some Judges are to the job during the Justice Kavanaugh confirmation hearings. Frankly he lost it. He was rude, interrupting Senators Klobacheur and Whitehouse. He was hostile and belligerent to Democratic Senators, dismissive, refused to answer direct questions about his finances and who paid off all of his debts and mortgage right before confirmation, which goes directly to 

Congress’s need to investigate whether a Judge is going to be independent or whether he is indebted or beholden to powerful interests. The risk is that once a Judge is elected or appointed or confirmed and they put on that black robe that they are then almost deified and thus beyond any further criticism. This is where it admittedly gets tricky. If we stick our head in the sand and presume that all Judges are independent, because that is what they are supposed to be, even when we know that their campaigns have been financed by Koch and other corporatist elite republicans, then we are protecting the form, but not the substance of the Constitution.

Mary - Ending Thoughts

The point of this series is to call out and examine where the system doesn’t work as a way to facilitate a discussion about how it can and should improve. I do not agree that we cannot respect Judges and the rule of law unless we act like the ideal Judiciary is what we are always dealing with. We need to be able to acknowledge the reality that Judges and attorneys are human beings, who sometimes do wrong, who can be motivated not by justice, but by self-interest, which can include forces outside of the law that affect their decisions. 

Lee: Check back next for episode 2; we plan to release 10 episodes over the next 10 weeks just in time for the election. no surprises here we will not be voting for Trump and we are going to urge you to vote Biden. 

Mary: The Republicans are pulling out all of the stops, they are suppressing the vote, cheating out in the open. And so far the Democrats are not taking the gloves off.

Lee: and this isn’t a lesser of two evils, this is a wide chasm between someone with democratic policies and a fucking cancer metasticizing through every corner of America.