Peccant Judges
The Big Picture Home Page Previous Big Picture Column Next Big Picture Column
Bad Judg(e)ment Page Previous Bad Judg(e)ment Column Next Bad Judg(e)ment Column
Bad Judg(e)ment: A Three-Part Series
Part Two: Peccant Judges
Published in the Maryland Daily Record August 27, 2004
As I wrote last time, most judicial vices are well within the bounds of what our system permits. There is no serious enforcement mechanism to prevent vices like sloth, arrogance or rudeness on the bench. But sometimes a judge manages to stick a toe over the line. He (I won’t add my customary qualifier “or she” because the ones I’m thinking of always seem to be men) get involved in vices that actually break the law. He sins. He gets involved in the same illegal things as do the civilians over whom he sits in judgement. I’m not talking about major transgressions like murder or rape, but about misdemeanors like consorting with prostitutes in chambers or other petty crime.
A poster boy for this kind of low-level peccant (from the Latin peccare, to sin) behavior was the Hon. Thomas S. Gilbert, the Traverse City, Michigan judge who attended an October 2002 Rolling Stones concert in Detroit, had someone hand him a joint, took a puff, passed it along – and found himself the butt of Jay Leno jokes and subject of judicial discipline.
Talking his case over with colleagues, I have been told that how you react to his tale partly depends on your thinking about the marijuana laws. So I guess I’d better get that issue out of the way first.
To me, these laws seem somewhat absurd. Here is a substance that, in the quantities typically consumed, has far less provably injurious or addictive effect than either alcohol or tobacco, and also sports some tolerably well-established medicinal purposes. It seems to have been made and kept illegal not because of its own inherent dangerousness but because there are statistical associations between marijuana use and the later use of other, more worrisome substances — and also, I strongly suspect, because of social prejudices against the kinds of people who use marijuana. It is a substance that most people – and I suspect most judges – have tried somewhere along the line.
And as to association with later drug use, some of the other things associated with later hard drug use include such legal substances as alcohol and tobacco, and such experiences (legal to undergo if not necessarily to inflict) as parental conflicts or separation, childhood sexual abuse, conduct disorder, major depression and social anxiety. In other words, smoking pot seems to be part of the common suite of adolescent vulnerability and risky behavior, every part of which is associated with every other part. But we’re singling out pot alone and making it illegal. So my outlook, in considering Judge Gilbert, is: I won’t smoke the stuff, but this is not a law I can ever respect.
Back to Judge Gilbert, then. He admitted that he sometimes used pot (and one has to suspect may have toked up more often than he confessed to), and also admitted that he had passed sentence on potheads who had come before him. He drew a 90-day suspension. Reflecting on the judge’s plight, I realized my sympathies were all over the map. His situation was like a perfect moot court problem, one in which there were a hundred right answers, and none.
The judge used an illegal intoxicant. It may not be malum in se but it certainly is a mala prohibita. As a lawyer, I can appreciate the importance of usually following rules I don’t agree with, as an abstract matter. Still, there are limits, as I said in an earlier column, and the marijuana laws may be just such a limit, where an individual may morally regard himself as entitled to flout the laws because the laws lack legitimacy. They are exercises in the majority telling an unconsenting minority how the minority should live its life. (The majority foregoes nothing because it does not want to use marijuana; it only wants to prevent the minority from doing so, even when the bad effects upon the majority if the minority does not comply are largely remote and theoretical.) Despite the technical sufficiency of the legislative process attending their passage, marijuana laws are not completely legitimate from a moral standpoint. (“Debatable Laws,” March 26, 2004.)
Well, but isn’t a judge a special case? He or she is supposed to be a moral exemplar, because a non-exemplary judge brings the law into disrespect. So shouldn’t all judges comply with all laws, no matter how questionable their legitimacy?
Of course, how many times have we heard – or for that matter said to ourselves, through gritted teeth, that one respects the office, not the individual? So if the individual falls short of perfect observance of the law, should that make us less respectful of the office? Or of the laws he or she enforces?
But then again, in the case of laws that really deserve no respect, that make things mala prohibita for no good reason, wouldn’t it arguably be the case that we would have more respect, not less, for the judge whose behavior flouted such laws? In other words, might we not respect the office more if the officeholder concurred with our lack of respect for those laws (perhaps including the prohibition of marijuana) that serve no good purpose? Laws whose real effect is to fill our prisons with people who have really done nothing wrong, and impose career-destroying stigma on many more?
Well, but take Judge Gilbert, the non-hypothetical judge who in personal life flouted bad and mean-spirited laws, but on the bench enforced them, fined or sent others to prison for behavior morally indistinguishable from his own. Was he a hypocrite? Or just a jurist who realized that it was his job to enforce the laws in the cases that came before him, regardless of how he personally felt? Could it not be said that he was just showing respect for his office and for the laws?
In the alternative, suppose the folks who passed the law were right? Suppose that, for reasons not now readily apparent, marijuana were truly the scourge and the pestilence the law treats it as being? Supposing that Judge Gilbert, by taking a single drag of a dobie, were doing something incalculably terrible? And then suppose that, again, he went on the bench and enforced laws in the cases before against the same kind of behavior of which he himself were guilty? Would he not then be, in a very real sense, admirable behavior, like to the behavior of the Whiskey Priest in Graham Greene’s The Power and the Glory? (The Priest is a drunk, a lecher, not even a very faithful man, and yet he becomes a martyr.) Knowing himself to be a flawed vessel, such a judge would nonetheless be dispensing justice as best he could, and protecting society, maybe not in the purest way, but nonetheless protecting society.
Certainly the matter would take on a very different complexion, though, depending on the laws in question. We would probably want even a sexually abusive judge to uphold the sexual harassment laws, no matter how narrow-minded he or she believed them to be. (Interestingly, while the Gilbert case was pending, one of his Upper Peninsula brethren had to resign after being exposed as a groper. This tells us that the disciplinary authorities recognize – and I’d concur on this – that groping is more serious than pot.) But probably we would want a judge in the pre-Civil Rights South to subvert Jim Crow, however staunch a segregationist he or she might be in private life.
The instinctive response to all this confusion is to demand consistency of our judges: to insist that they live up to all the laws all the time, and believe in all the laws all the time. And in some alternate universe, perhaps that would even be possible. In this universe, however, we only have flawed human beings like ourselves to staff the judiciary. And in this universe, no thinking person can admire all the laws. And we do want our judges to think.
In this universe, let it be noted, Judge Gilbert did not depict himself to be a martyr for marijuana dissent. Far from maintaining that there was nothing wrong with his close encounter with a joint, he repudiated it and blamed it largely on alcohol abuse problems (for which, like so many modern sinners, he then sought treatment). Like Galileo, he recanted what he must have believed to be the truth – in this instance about the inanity of one of the laws he enforced. In other words, his personal deviation from the norms he enforced was proclaimed a matter of weakness, not of principle. His apology went to the upholders of the law, not the druggies. And he was almost certainly not displaying much candor thereby. But a judge who lies to save his hide may survive to follow his mission to administer justice another day, while a martyr may be removed from the bench, and serve no one.
Not Judge Gilbert, though. He soon came to see that he had lost what the Chinese call “the mandate of heaven.” Bowing to the action of his local Bar Association in ejecting him, and of the electorate in being ready to vote for some very credible challengers for his seat, he declined to run again. That very public puff had finished his judicial career. Interestingly, no commentator I read (and I looked at the local Grand Rapids papers as well as the national press) indicated whether Judge Gilbert was in other respects a good judge or an awful one. The marijuana use – quite tellingly — tells us absolutely nothing about what kind of judge he was, and only the sketchiest amount about the kind of human being he was. It is possible that Grand Rapids lost a really good judge in this imbroglio.
In retrospect, was he tragic or contemptible or just comical? Not easy to say. Peccant judges have that effect on us; unless we demand inhuman judicial perfection on the one hand or endorse total judicial anarchy on the other, they force us to think in uncomfortable shades of gray. They pose big headachey problems. Which I guess is why in general we want our judges to be squeaky clean. Not because this is an assurance of great judging, but because peccant judges raise such unsettling issues, and we have enough on our plate.
I certainly do, which is why I would not have voted to reelect him. I might have had some misgivings, but in the end I would have wanted him to leave. But in voting against him, I would have felt a nagging sense that this was all wrong. As I say, peccant judges have that effect.
Copyright (c) Jack L. B. Gohn
The Big Picture Home Page Previous Big Picture Column Next Big Picture Column
Bad Judg(e)ment Page Previous Bad Judg(e)ment Column Next Bad Judg(e)ment Column