Harriet Miers and the Judiciary

I don't know that I can do anything to elucidate this mudsling-alooza over Harriet Miers and her judicial qualifications (if any). Suffice it to say that I have been growing increasingly very skeptical of late.

Having said this, it is noted that most Americans will be immediately affected not by the nine men and women who sit behind the bench in that classical Corinthian marble building across the street from the United States Capitol, but by the judges of the local trial courts located (often literally) on Main Street in the villages, towns and cities of our country.

Here are two contrasting examples of what is happening with the judges in the local nisi prius courts;

1. On 7 October 2005, the Kansas Supreme Court removed Judge George R. Robertson from the bench of the Kansas 28th Judicial District Court. His Dishonor had, for the better part of a year, been using courthouse computers on courthouse time to view pornographic websites.

2. On 18 March 2005, the New York State Commission on Judicial Conduct had to decide what to do about Judge Diane S. Lebedeff, who was up before it for giving preferential treatment to friends who appeared in a case before her. The Commission declined to remove Judge Lebedeff from the bench, but instead censured her. This was less than 18 months after the Commission had censured Judge Lebedeff for giving other friends preferential treatment in a prior case. Diane Lebedeff is still sitting on the bench, and if I ever appear before her I can be assured that I will not receive preferential treatment because I do not know her.

I would say that the Lebedeff matter speaks for itself, but that would be understatement. On 22 February 1996, the New York Law Journal featured a page one article entitled "Kaye Warns Judiciary is Threatened," in which it was reported that the top judge in New York, Court of Appeals Judge Judith S. Kaye, expressed "grave concern" that recent criticism of certain judges would have a chilling effect upon judicial independence and respect for the judiciary. Also appearing on the very same first page of the 22 February 1996 the New York Law Journal was an article entitled "Removal of Nassau County Judge Urged by Judicial Conduct Panel," detailing the recommended unbenching of Judge B. Marc Mogil for sending harassive anonymous faxes to an attorney with whom he had a personal vendetta.

The Lebedeff matter merely gave lie to the contention that the two contrasting articles on the front page of the 22 February 1996 New York Law Journal was a mere case of misfortuitous timing. In the almost ten years since, many more New York judges have sullied the bench with their misconduct. Indeed, within the past month, Judge David Gross of the Nassau County District Court has been suspended with pay after being indicted on money laundering charges.

Judge Kaye's concern about judicial independence is certainly quite valid, but how can she ever expect the public and the bar to respect the judiciary if, at any given time, one or more of her cadre of black-robed bench brats is in the process of acting up?

Without in any way detracting from the seriousness of this Harriet Miers thing, it is by no means the only issue imperiling the American judiciary.