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WHO SHOULD JUDGE THE JUDGES?

By Jeff Jacoby, Globe Columnist
Copyright 2002, The Boston Globe

May 12, 2002

When Tom Finneran, the speaker of the Massachusetts House of Representatives, suggested earlier this year that it might be a good idea for the Bay State to switch from appointing its judges to electing them, his rationale -- that elections would be a mechanism for "cleansing" judicial mistakes -- was believed by exactly nobody. His remarks were taken as a crude attempt to bully the Supreme Judicial Court, which was trying to find a way to implement the voter-enacted Clean Elections Law that the Legislature refuses to enforce.

But that doesn't mean there is no merit in the idea that judges should be accountable to the voters. There is a note of reason in Finneran's suggestion. But it was hard to hear that note amid the cacophony of his ongoing campaign to weaken and intimidate the Massachusetts judiciary.

Last year the speaker slid a provision into the state budget that stripped judges of their authority to hire probation officers. Ten days ago, one of his loyalists filed a budget rider that would so denude the judges of administrative power that they would no longer be able to hire or fire their own secretaries. Another rider would abolish the Commission on Judicial Conduct, the panel that investigates complaints of judicial misbehavior, and transfer its powers to a legislative committee.

Judges in Massachusetts have traditionally been under the Legislature's thumb; if Finneran gets his way, they will find themselves under its heel. At that point, two of the state's three branches of government will be controlled by a small clique of powerful Democratic politicians, and the transformation of Massachusetts from a democracy to an oligarchy will be nearly complete.

But just because Finnerizing the judiciary would be a bad idea, that doesn't mean the existing system is such a good one.

Massachusetts judges are appointed more or less for life. They serve until age 70, unless they voluntarily retire. In 47 other states, by contrast, judges serve fixed but renewable terms. That makes it easy to dislodge those who prove crooked or incompetent (although in practice, judges are almost always retained).

Under Massachusetts law, it is possible in theory to remove an unfit judge -- it can be done through impeachment by the House and conviction by the Senate, through a "bill of address" from the Legislature to the governor, or by order of the Supreme Judicial Court -- but in the real world, it never happens.

The Commission on Judicial Conduct is more lapdog than watchdog. It dimisses more than 95 percent of the complaints it receives, and disposes of most of the others through "informal adjustments" negotiated with the judge. Almost never does it publicly charge a judge with violating judicial ethics, as it did in the case of Judge Maria Lopez last week. Lopez is the exception that proves the rule: Bay State judges know almost to a certainty that they will never be called to account for their behavior in office.

Let alone for their judgment.

Consider the Lopez case. The judge is accused of acting outrageously in handling the Charles Horton prosecution two years ago. Horton had been caught by the police literally with his pants down in the act of trying to force himself on a 12-year-old boy. He pleaded guilty to kidnapping, indecent assault, attempted rape of a child, and assault and battery with a dangerous weapon. Prosecutors asked for a sentence of 10 to 12 years.

Instead Lopez gave him a no-jail sentence of probation and a year's home detention, with unlimited time off for school, church, counseling, and medical appointments. The public was scandalized by this non-punishment, but the disgraceful sentence wasn't what concerned the judicial conduct commission. All the violations with which it charged her had to do with her handling of the case -- showing bias toward the defendant, berating the prosecutor, lying to the court's press officer, and improperly urging defense lawyers to speak to the media in her behalf.

Those were bad enough, and might well lead a reasonable person to conclude that Lopez shouldn't be a judge. But what about her lousy decision? Setting an attempted child rapist free speaks at least as loudly to her unfitness for the bench as the improper behavior she is charged with. Yet about that the commission is silent. "The judge's sentencing of Horton is irrelevant to our charges," its executive director said.

Well, it wasn't irrelevant to the people of Massachusetts, who were infuriated by Lopez's decision. In a democracy, the people are supposed to be supreme, but the laws of Massachusetts give the people no recourse when a judge has lost their trust and respect. That is not healthy. Judges are not meant to be gods on high, secure in their power whether or not they have the consent of the governed. They are public servants, and should be answerable to their masters.

The Massachusetts judiciary needs an infusion of democracy. Instead of lifetime tenure, judges should be appointed by the governor for a fixed term -- seven years, say. At the end of that period, the voters should decide in an up-or-down retention election whether to keep the judge in office for another term. These would not be unseemly slugfests; judges wouldn't be running against each other or raising money for political campaigns.

But they would be reminded that their power comes from the people and is not theirs by divine right. That is something too many judges seem to forget. A little democracy would help them remember.

Jeff Jacoby is a columnist for The Boston Globe
His E-mail address is -
jacoby@globe.com
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