As the New York Law Journal noted, it seems to be open season on our profession; press and politicians have savaged three New York City judges for their suppression rulings and bail determinations, and in my home town of Rochester two County Court judges have received similar treatment.

Such attacks go well beyond reasoned criticism or comment. Worse yet, they undermine the independence of the judiciary, and show a profound misunderstanding of the role of the courts and a deepening distrust of judicial process. It would be a mistake to ignore them.

We judges are the most visible members of the justice system. Reporters ride along in very few police cars and are never found in the conference rooms of district attorneys or public defenders. Legislative sessions are banished to cable stations, unwatched. But in every important or scandalous case there are reporters in the courtroom, sometimes behind TV cameras. The right to a public trial is an important one, but too often these days it leads to a misunderstanding of judicial power. Cases may be dismissed because of inadequate preparation or legislative oversight, and bail set low because the only crime charged is a misdemeanor. The public hears little of this; all they see is the judge and a questionable decision.

Besides, these days the public seems to want judges that are not only incorruptible, which is their right, but ones who are infallible as well. They grow impatient with the tedium of legal procedure and outraged by the court's narrow view of its function. Too many people "know" how a case should turn out, and cannot understand how the courts either rule otherwise or take a seeming eternity to reach the obvious conclusion.

The critics fail to see that law is a process, not a cut and dried application of clear rules to obvious facts. What is more, they fail to honor the essential humility of the act of judging. As judges, we are all too conscious that our robes do not give us the wisdom of Solomon, the psychic powers of Nostradamus, or the x-ray vision of Superman; yet all these would be required for us to judge each case without hesitation or error. We do our human best, which must necessarily fall short of perfection.

Those who long for swift and infallible justice are disappointed, even outraged. But our legal system does not demand perfection. It developed over millennia of experimentation and conflict, and in time we instituted appeals courts and prerogative writs to protect the innocent against legal power gone astray. From those struggles emerged one of humanity's greatest ideas: the rule of law. We came to understand that the wisdom of any one person was insufficient to guarantee a just result in every case, and was too much power to be entrusted to any one person. The perfect judge was a myth that ended in arbitrariness and tyranny. The best guarantor of our security lay in the subjection of all to the principles and procedures of the law.

Judges must be free to follow those rules and procedures, wherever they may lead, and they must not be subject to censure or attack because they have done their duty, or because they have erred in doing so. Whether the questioned rulings were correct or not is unimportant. What is important is the judge's commitment to the rule of law. A demand that judges be immediately accountable for every unpopular or unfortunate decision is more than irrational. It strikes at the heart of our legal system and the principles that have protected our liberties for two hundred years and more.

Design © 1997 Michael Steinberg; Written contents, except for decision texts, are © 1993-1997 Andrew V. Siracuse and Michael Steinberg. No copyright subsists in the decision texts, which are government documents.

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