Judging: The Right and Wrong Way
I have been in the law business for almost 43 years and spent the prior three years – 1978 to 1981 – learning the fundamentals. More than two-thirds of my existence, and every day since before my 21st birthday.
I do not know how often I have appeared before judges. Many thousands, before well more than one hundred judges. Often enough to know the good ones from those who are not.
Yesterday, two stories highlighted the dichotomy. U.S. District Judge Ricardo Urbina (Ret.) died on June 17, 2024. Judge Urbina served as a federal judge in Washington from 1994 to 2012. Before he received his judicial commission after President Bill Clinton appointed him and the Senate confirmed the appointment, he served on Superior Court of the District of Columbia – the local trial court – for 13 years.
Judge Urbina lived an interesting life. A mixed-race individual with no financial advantages as a child, he was a track and field star (barely missing a chance to appear in the 1968 Olympics) and received undergraduate and law degrees from Georgetown University. He served as a public defender and law professor before President Reagan appointed him to the Superior Court.
So? Two things struck me about Judge Urbina, aside from wishing I had known him or known about him before yesterday morning. First, he liked to focus on rehabilitation. He said:
I do not have a passion for punishment. If there is a way the court can contribute to the rehabilitation process, it is more likely the person will return to the mainstream.
Not a view most people want to hear.
Second, in a 2011 profile, on assuming senior status on the bench before he retired, he told the Washington Post:
I try to see where my biases and prejudices that day are hiding. If you don’t find them, they have a tendency to come out at the most unusual of times.
Imagine a federal judge admitting to having biases and prejudices. To not being an umpire who simply calls balls and strikes.
RIP Judge Urbina. Thank you for your service, and for being a role model for how judges should serve.
Then we have Judge Aileen Cannon, who serves on the federal bench in the Southern District of Florida, in Fort Pierce. Judge Cannon has been a federal judge for less than four years. Aside from wishing she were not spending her days judging others, I can share what I believe are ethically appropriate observations. (Rule 41(b)(3), Ariz. R. Sup. Ct., mandates that lawyers “maintain the respect due to courts of justice and judicial officers.”)
Judge Cannon, if anyone does not recognize her name, has on her docket U.S. v. Trump, CR 2021-80101 aka “the documents case.” Previously, she managed the suit Donald Trump filed to prevent the investigation that led to the documents case indictment. She effed up the matter badly! So badly that the Court of Appeals for the 11th Circuit took her to task for not dismissing Mr. Trump’s case for lack of jurisdiction, and for appointing a Special Master. Appellate court rarely use language akin to the language in its unanimous reversal order.
Yesterday, I read this piece which focused on the suggestion from Judge Cannon’s chief judge (and another, unidentified colleague) that she might want to take a pass on the Trump criminal case.
Federal judges act independently. A chief judge for a District or Circuit Court has authority over the budget, the buildings, hours, and the like, but no authority to force a fellow judge to do anything regarding a case. Thus, she had every right to ignore the advice. What we can do should not, however, tell us what we should do!
Explanations exist for Judge Cannon’s failings. She is very new and had limited trial experience before Mr. Trump and the Senate made her a judge. She works in a courthouse with one other judge, losing the opportunities she would have in Miami or Ft. Lauderdale to benefit from “water cooler” knowledge that we all get when we can talk with others.
I have read articles which suggest no bias here. If those who push that position accurately reflect what is going on, Judge Cannon’s actions reflect a lack of ability writ large. The government filed the case 54 weeks ago. Effectively, she has accomplished nothing in more than a year. Yes, the case involves complicated issues; however, she got a first crack at the issues when she mishandled the prior suit.
Complicated cases take more time, but every case has the same basic parts. A trial by now might reflect unrealistic optimism, but the lack of any meaningful set of decisions that will allow for a trial someday soon reflects very poorly on a judge with a year-old case.
Of course, if the “No Bias” crowd has it wrong, we have already watched a serious injustice, no matter what happens in the future. Unfortunately, even if Judge Cannon has played this case straight and simply lacks sufficient knowledge and ability to competently get it to trial, people assume bad motives. Which surely explains, at least in part, why the chief judge and a colleague made their suggestion.
I do not recall encountering a judge so directly addressing bias, as did Judge Urbina. While I have had cases before judges who lacked any evident understanding about what they were doing, I do not recall seeing a judge so challenged to move a case along, as Judge Cannon has been.
thanks for this; I've saved the two quotations from Judge Urbana to my "quotes" file. Nice contrast. barbara