My column-colleague (banter buddy? tirade teammate?) from Northern Nevada, Orrin Johnson, has written a couple of humdingers in this publication about judges that I thought could benefit from a different perspective. The first is about the ever-perplexing challenge to the populace to select a judge off the ballot. The second is a scathing critique of any political candidate who dares criticize a judge with particular malice, singling out Jacky Rosen for doing just that. (Update since I first penned this piece: There is apparently more to dislike about Judge Kavanaugh than initially expressed.)

Strangely, Johnson does not raise the issue of judicial discretion in either of his articles. Yet, judicial discretion is arguably the most important power bestowed upon judges. I say most important because within the boundaries of the law, judges are vested with this magical strike zone where they can make horrific mistakes, exercise their personal opinions and agendas, and generally screw over a litigant so long as they are not officially found to be “abusing their discretion.”  

Higher courts have set a high standard for what amounts to an “abuse” of discretion. And yet, more often than you’d think, a judge is still found to have done just that. Abused discretion, I mean. I would go further to say, even, to have abused power — and, of course, that’s a bad thing. Indefensible, if you think about it. And while this abuse regularly results in cases being reversed (and usually a retrial at great expense), there are too many cases where a higher court says the abuse was “harmless” because it didn’t affect the outcome. Harmless maybe, but still a problem, right…?

So what happens to judges who abuse their power? Do they get punished? Is there some sort of penalty? Writing 100 times on the blackboard, “I am not a black-robed god?” Having their picture posted on the courthouse gates with the words “Tsk Tsk” underneath in comic sans font? Being forced to repeat the third year of law school?

Nah, judges just hum along suffering neither penalty nor punishment for their abuses. That’s a problem, especially because it’s next to impossible for the public to discover how often a judge does it. There is no database. There rarely are public censures or reports in the local paper.

In his columns, Johnson seems to indicate that judges are generally smart people who simply follow the law. (Can’t object to a judge who follows the law!) And one who is distinguishable only by the caliber of the “things they have written,” “their backgrounds as found on documents like a judicial appointment application” and “their temperament.”

Johnson does acknowledge in his selecting a judge column that some candidates may have different philosophies “especially in cases where statutory language is not crystal clear.” On this we agree, but we need to go further than that. Day in and day out, lawyers argue in front of judges whatever the facts of a case require (in the way of action, or denial of action) based on the so-called and supposed “crystal clear” language of statutes. In my experience, though, that crystal-clear language is rarely a help when one appears in front of a judge who is looking to help the other side.

Law is great. But inherent in our American legal advocacy system is plenty of room for both sides to dispute just what the law requires in a given circumstance. It often comes down to questions including “what is the significance” of established facts; “which facts have been proven” to the judge’s satisfaction; and “is this more like precedent A or precedent B?” This is where the discretion of the judge starts to kick in. And from judge to judge, it can be all over the place. Judges decide whether something in a case was done by a party in good faith, or with a reckless disregard, or negligently, or excusably, or in bad faith – judgment calls all, and that affect what may happen next, and that rarely get disturbed upon review.

Nevada judges also are given a range of allowable sentencing for defendants and so long as the ultimate sentence falls in the range, it stands. And let me tell you, the length almost always depends on which judge you get for sentencing. A judge in Fallon can sentence an elderly, mentally ill, first-time offender on a non-violent offense to up to 20 years in prison and the Nevada Supreme Court won’t bat an eye because “discretion.” A similarly situated offender in Clark County was recently given diversion and probation because “discretion.” Both judges were following the “crystal-clear” law.

When faced with an injustice, we’d hope a judge would somehow figure out how to do the right thing. This idea serves a higher policy goal:  sometimes the rules are too talismanic, and if a person is innocent, or a cause is just, there should be some overarching imperative to somehow reach the right result. The law is filled with broad platitudes that judges are sworn to follow: “death (penalty) is different”; ambiguity in the law must benefit the defendant; prosecutors have a duty to only seek what is just, not to “win” cases; and “every citizen is entitled to absolute liberty” – i.e., sentences must be proportionate to the crime.

In one of his columns, Mr. Johnson shares a heartfelt anecdote about a judge who probably wanted to do the right thing in a DUI case, but gosh-golly the law just wouldn’t let him. Johnson then goes on to praise the judge even though he lost the case, concluding that “as disappointed as I was in the outcome for that client, I was glad – because I knew the next time I had an argument where the sympathy factor didn’t weigh in on the side of the criminal defendant (which is most of the time), but where the law did (such as a motion to suppress evidence based on an illegal search), I could count on him to follow the law.”

What Johnson doesn’t mention is that even where the law to suppress evidence on illegal searches is clear, far too many “law and order”/let’s just defer to the prosecution/why-give-the-defendant-a-break judges aren’t necessarily going to follow that law, even while, ahem, following the law. It depends on, well, the exercise of discretion.  Discretion allows “exceptions” based upon the evaluation of the facts, which far too often goes to the benefit of prosecution arguments.

It’s confounding.

Equally confounding is criticizing a political candidate for criticizing a judge for making a judgment call that hurt Nevada. Mr. Johnson lashed out at Rep. Jacky Rosen for daring to say Supreme Court nominee Brett Kavanaugh got it wrong on a decision involving Yucca Mountain that ultimately hurt Nevada. In his column, Johnson painstakingly endorses as the “rule of law” the decision by Judge Kavanaugh, and callously discounts as “misguided” the evocative dissent in that same case from a different judge. See, that’s the thing about judges. They are all very certain they are following the law (none will admit otherwise) even as they completely disagree with one another. (I’m very conveniently sidestepping my own analysis of the case at issue (Aiken County, 725 F.3d 255 (D.C. Cir. 2013)). I can tell you I concluded that Judge Kavanaugh’s opinion was pretty far away from a rote and dispassionate application of a very clear law. (I’ll debate Orrin on that, offline.)

This topic reminds me of some of the most charming, but ultimately gut-wrenching scenes from the recent Ruth Bader Ginsburg documentary (RBG) where the brilliant and thoughtful Justice Ginsburg was relegated to dissent opinion after dissent opinion involving issues of fundamental rights where she kept reiterating from her perspective how clear the law is and how her brethren were choosing to work around and misuse their discretion.

Wanting a judge to follow the law is admirable, if the law was something you simply apply like a salve. But if that were the case, justice could be administered by one of those automated phone menus after a set series of buttons were pushed. And proclamations of “following the law” have been the justification for some of the worst decisions in United States history. To wit: Korematsu (Japanese American internment), Plessy v. Ferguson (separate but equal), and Bush v. Gore (in which the SCOTUS presupposed and accepted Florida’s representation that they couldn’t successfully recount ballots without even ordering the state to try).

I do agree that it’s really hard to pick judges who are going to be good. Especially in Nevada where it seems to turn into a Best Photo contest. Presumably, the higher up the judicial ladder, the more competent, fair and even-tempered a judge will be.  But even if that were true (and let’s be honest, we have really picked some doozy judges in our state), there is still a lot to evaluate in order to make the best choice possible — and that information isn’t always known to the public. And even if it were — even if we were to find a decision or an article that a judge wrote – could most people evaluate the context correctly and decide whether the judge was right?

Asking a lawyer his/her opinion of a judge might be a good idea for a voter, especially one who appears in front of the judge in question on a regular basis, but maybe that’s equally as muddy.  Some years back, the Las Vegas Review-Journal used to conduct a survey of lawyers every other year or so called “Judging the Judges” — but it was discontinued, probably because the lawyers most likely to take the survey had grudges and weren’t afraid to use it. (It was anonymous).

In my mind, one good measure of an incumbent judge (other than sitting in that judges’ courtroom day in and day out to observe for yourself) is to call upon that judge to reveal how many times he or she has been taken to task by a higher court for violating someone’s constitutional rights without cause. If the candidate for judge is a prosecutor, then ask how many cases have been reversed or cited for prosecutorial misconduct. If the candidate is a civil or defense lawyer, ask how many times have they been sanctioned or held in contempt. And then, let the explaining begin. Maybe they’ll have a good answer. Maybe the answer will convince you one way or the other. Maybe it’ll spawn more questions.

And if the candidates and incumbents won’t answer, perhaps it is the role of the media to do something about it. As Johnson pointed out, absent some very precise, clever and lucky Googling, a person would need a pricey legal research account to even get most of the information I suggested above. It’s something someone absolutely should be doing as a public service. Indeed, in a relatively recent and scathing indictment of a former prosecutor who now sits as a judge, a reporter did the same to great effect. (Only thing is, I’m not sure too many people read it. The judge referenced is still a judge. He’s even won contested elections.)  

Of course, we may sometimes be blessed with incumbents and candidates who have never been in any sort of muck — and then what? Well, either one at that point is probably a fine  choice. Just figure out what qualities you’d like most in a judge (years of experience, diversity, community involvement) and let that be your guide. But don’t fail to vote, just get educated on… something! Worst-case scenario is that you picked a horrible person who you can vote out next election after paying attention.

Maybe it’s time to get local. Maybe it’s OK to criticize judges for making decisions that hurt people. Maybe there is some discretion that is being wielded unwisely. Maybe there’s more to a judge, after all, than just “following the crystal clear law.”

I agree we should be better informed, but we also need to be better informed about what we’re better informing ourselves about! Personally, I hold no contempt for a person who criticizes a Supreme Court nominee for making decisions that don’t add up to that critic and that hurt Nevada. Admittedly, it’s complicated — but no less so than the law, itself.