The most interesting, yet distressing, person I have encountered this year is Judge Celia Day. Judge Day is a federal district court judge in Manhattan and one of the characters in Lawrence Joseph’s small classic Lawyerland, a “non-fiction novel” of interviews with lawyers in New York City. The book is fiction in that the names of the characters and the settings of the interviews are fictional in order to provide the interviewees “cover” to be candid, but the interviews are factual in their content.
All the interviews are fascinating, but Judge Day’s comments are the most memorable. For instance, this sitting federal judge dispassionately warns us not to “count on the courts.” “Real power doesn’t exist in the courts.” While judges do have a little discretion, “there’s a big difference between having a little discretion and having real power.” I must admit that this statement shocked me because I have always thought that judicial discretion to rule for one side or the other and to fashion the relief ordered was a significant power.
But Day later tells, again dispassionately, a story that I think proves her point. The next morning she is scheduled to sentence a forty–five year old woman who has pled guilty to conspiracy to murder her husband. Day then explains some of the circumstances. It was an “arranged” marriage. The couple had two children, but all the sex was forced,“ugly stuff.” The husband has never disputed these allegations. But there’s more. Every time the woman has appeared in court, her husband has been at her side, and during recesses they converse like any married couple. So Judge Day does have a little discretion in setting the prison term, but no real power to order a just result.
Day is no fan of the law. We are ruled by politicians “each backed by his own small army, and I mean army, of lobbyists and lawyers who haven’t the slightest care for what happening in people’s lives.” Lawyers are a big part of the problem since their job is to lie. “It’s inherent in the process…. Lawyers know too much. If you know too much, how don’t you lie?” But the lawyers are just doing their job. And Day fears that the root cause of the law’s failure is deeper than politicians and lawyers. “What if”, she muses,”the law we have is the law we deserve?”
But even though Day is very critical of the legal system as a whole, she makes no apologies for her role as a judge. “I am not the law. I interpret the law and enforce it.” She thinks this is a doable job “if you keep your personal predispositions under control.” This tendency to blame the system but not yourself is one Judge Day shares with the other New York lawyers interviewed in Lawyerland. They all are quick to point out the legal system’s dysfunctions, but seem pleased with their own professional role.
I find this very human tendency to absolve oneself of blame dispiriting. Here we have an elite who are major players in a process that provides them both prestige and a comfortable income, but who take no personal responsibility for how well it operates. It’s especially discouraging when the judges who tend the supposed altars of justice seem to have lost their faith in law.
I applaud Judge Day for her intelligence and candor. We need to know the system is broken if we hope to repair it. Still I fault her passivity. She is too much a spectator. She may not be the “law,” but her judgments embody it for those who come before her. A cry of despair is not the only possible judicial response to a failed system. Earl Warren, a former district attorney, was no stranger to the criminal legal system’s shortcomings, but as Chief Justice, he worked to remedy them. And, closer to home, Judge Jed Rakoff, Day’s real life colleague on the Southern District, has used his office as a bully pulpit to educate citizens on the need for reform. https://guileisgood.com/tag/plea-bargains/
Judge Day seems to think that the legal system is forced to handle social problems it cannot solve, and that may be true in some circumstances like the arranged marriage/rape case, but there are more situations where the social problems are caused in whole or in part by our ineffective legal system. Think of racial discrimination and government spying, to mention just two. That’s where judges should stop complaining and start doing their job.
Dispassion is a virtue in analyzing a problem, but, as the song says, to solve problems, “you gotta have heart.”
What do you think?
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