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Should judges act as ‘potted plants’ or active reformers?

There is so much said these days about the need to reform our justice system. But where does that start and what exactly do these changes look like?

Should prosecutors be allowed to buck the law and decide not to prosecute certain offenses? Should the system of cash bail be scrapped because poor defendants cannot afford it? If so, how do we guarantee the accused show up at trial? In the drive to depopulate prisons, is public safety in jeopardy? What are the most successful diversion programs for first-time offenders?

Maybe most importantly, who should answer these questions?

During the Senate’s 1987 Iran-Contra hearings, Col. Oliver North’s attorney objected to a hypothetical question his client was asked. Sen. Daniel Inouye reminded the lawyer, the legendary litigator Brendan Sullivan, that the rules of the courtroom did not apply to congressional hearings.

“Let the witness object if he wishes to,” Inouye said. Sullivan’s tart response has been memorized by countless attorneys.

“Well, sir, I am not a potted plant. I’m here as the lawyer. That’s MY job.”

Now, the Chief Justice of Michigan, Judge Bridget Mary McCormack, has reprised that famous quote in an essay about getting judges actively involved in changing our current system.

“In the dynamics of reforming and improving the justice system,” she wrote in the Yale Law Journal, “a judge should not be a potted plant.”

What’s that now? Traditionally, jurists have kept a low profile off the bench, believing it unethical to advocate for or against any particular position. Many judges see their job as simply applying the laws that were duly passed by state or federal legislators.

But McCormack wrote, “Judges are uniquely valuable contributors to reform efforts precisely because they are exposed to the day-to-day workings of the justice system and the flaws within it.”

McCormack spent two years as co-chair of a Michigan state task force studying how to reduce county jail populations. She proudly says the state legislature agreed with many of her committee’s recommendations for how to decriminalize low-level offenses and to divert some defendants to outside programs rather than send them to prison.

“There is no formal ethical obstacle to judges working toward the improvement of the law and the justice system,” McCormack wrote. And she made it a point to say she knows of “lots” of judges in other states who are also contributing to the reform movement.

I’m wondering what readers think about this idea.

It is true that judges have a front-row seat to the real-world effects the system has on citizens, and they are in a prime position to point out the strengths and weaknesses of the court system. But, historically, the elevated, black-robed judge is there to stoically consider the fine points of law and issue a contemplative ruling — period. If judges become deeply involved in changes to the very system that guides them, what happens to their impartiality — or is impartiality a nostalgic relic of the past, anyway?

It is of no use to have a public servant act like a “potted plant” and simply go along to get along as they discharge their duty. I long for the days when judges put the public’s safety first, would actually buck a bad law, and would lock up an obvious career criminal instead of automatically releasing the defendant as so many jurists do today. There has to be a more sensible balance.

A judge’s know-how about courtroom procedures can be invaluable, but that doesn’t necessarily translate into expertise on how to run a prison, what the long-term consequences of doing away with cash bail will be or the finer points of dealing with crime victims.

Many of the reform ideas being floated today have merit. Helping young people stay out of the system is one. Sentencing reform is another. But some of today’s proposals are born of the progressive “defund the police” movement. Even judges can be tempted to jump on a popular bandwagon while eyeing reelection.

Should judges have a voice in change? Of course. But lawmakers might be best served if they give more weight to reform suggestions put forth by civilian experts who have long studied all aspects of the justice system.

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