I learned today that the first African-American judge in the United States was Wentworth Cheswell of New Hampshire. Elected Justice of the Peace in 1805, he presided over trials, probated wills and carried out other judicial duties over local matters. To honor Justice Cheswell, I thought it appropriate to consider these thoughts on the role of a judge in a civil* society:
If we travel back to the days of the philosopher kings and queens, the executive was also the lawgiver and/or judge. (You may recall Solomon’s role as both King and judge.) In some cultures the monarch was also the chief priest. (Melchizedek comes to mind.) And the authority for each role clearly rested in that king or queen, even if the roles blurred into each other. I doubt that people ever spent much time trying to discern in what particular capacity a king or queen was acting at any given time.
But here in America we have separate and defined roles: the Executive branch, the Legislative branch, and the Judicial branch. Still, we have repeatedly seen the other two branches try to put their oars in the judicial waters, blurring the distinctions. Judges usually resent this as an incursion by those who don’t have the proper training or interests. We indignantly state that they are interfering with our judging and threatening to undo all that we (as the ones actually in the trenches day to day) have accomplished. I get the impression that the other two branches feel the same way about perceived attempts by the judiciary to do the same to them.
Still, does that mean that we do not have anything to offer each other? I’m sure there are many people in each branch who have insights that would be valuable to the others. The next question, though, is at what price. When judges stop judging, they start to look like politicians. In fact, while the other two branches are properly identified as the political branches of government, ours is not. It is only when we perform our core function – judging – that we set ourselves apart from the other two branches. Only then can we lay claim to the right not to be treated as just another set of politicians. And that claim is in large part what allows our branch to have any practical effect at all.
A judge’s effectiveness relies on the goodwill of the people. They must see us as truly judging: applying already existing law to a given case, and not creating it to fit a particular set of facts. In that position, we have the moral authority to demand enforcement and compliance with our orders. This came up with President Nixon and the White House tapes. The story goes that after the Supreme Court ordered the President to comply with a subpoena and turn the tapes over, a reporter asked Chief Justice Burger how he planned to enforce the order if Nixon refused to comply. Burger said that he had the Supreme Court police at his disposal and the President had the Army’s First Airborne Division, so it may not be much of a contest. His point was that enforcement came not from force, but from authority. Nixon turned over the tapes.
I fear that we judges lose our authority when we try to take on official roles apart from our proper judicial duties. Deciding cases and running the judicial branch are about the only places where we can act and not run the risk of diminishing our authority as judges. Legislators legislate, Executives execute, and Judges judge. If I wanted to pass laws or create public policy, I would leave judging and join one of the other branches.
As it is, though, I happen to like judging a lot. It is here I hope to stay.
*A civil society is one not under military rule. I use it in a slightly broader sense here, though, to encompass societies governed by laws and not governed by the whims of whoever happens to be in power at the moment.