Some recent headlines about trial judges behaving badly and a recent bad experience I personally experienced at trial last week have me thinking about this: what should you expect from a trial judge? Competency? Fairness? Mercy? Understanding? Knowledge of the rules of evidence? Impartiality? Experience? Ability to stay awake during the trial? Maybe all of the above?
I only half-jokingly included in the desired traits list above the ability to stay awake on the bench. Just this week an Illinois appellate court ruled that the fact that the trial judge slept through some of a murder trial did not automatically result in a reversal of the conviction or warrant a new trial. That sleeping jurist claimed he had not actually fallen asleep but was simply resting his eyes. “If I was not looking at the video, that does not mean that I was not listening and hearing everything that was being said,” said O’Connor, who called the motion “disgusting,” according to a transcript cited in the appellate ruling. So Justice may be blind but it doesn’t have to be awake?
The question of what should we expect in a trial judge also has been hotly debated this week when the Senate Judiciary Committee approved a judicial appointee of POTUS for a Federal trial bench opening in Alabama. The reason for the outrage among lawyers about the judicial nominee is the fact that he is only 36 years old, has never tried a case and has practiced law for only 3 years. Many have called him “clearly unqualified” to take the trial bench and that his appointment is “laughable”. He has literally never tried a case! Can’t we all agree that to be able to preside competently over a trial by jury, make life-changing decisions of what evidence gets in and what evidence doesn’t, decide whether a litigant receives a constitutionally protected fair trial, that the trial judge should at least have tried a case before?
Lawyers Club of Atlanta
From the President
I share with you my recent tribute to a wonderful man and judge, Judge Herbert Phipps, Chief Judge of the Georgia Court of Appeals. Judge Phipps will, at the end of this month, hand over the position of Chief Judge of the Court to Judge Sara Doyle, and so it is a proper moment to acknowledge his work and lifetime of public service and take stock in the sort of person we have had at the helm of the Court. Enjoy.
I have been extremely fortunate to have served in leadership positions in many bar organizations, and if there is one common theme to that experience, it is the intangible reward of getting the opportunity to get to know and work with some of Georgia’s greatest leaders in our beloved profession. People who, but for my work alongside them in some bar association, our paths might never have crossed. Once such person is Judge Herbert Phipps, a Past President of the Lawyers Club of Atlanta (and first African American President). When I think of Judge Phipps¸ I do not first think of his shining public service as the current Chief Judge of the Georgia Court of Appeals (the busiest appellate court in the United States, as Judge Ellington will remind us), but rather of his humanity and the example his life offers to us.
Over the years, I have enjoyed talking with Judge Phipps about his life and his place in the world. Many of these conversations happened over a drink at Lawyers Club. I would listen intently to stories told as only Judge Phipps can tell them, and then would ask him to tell one more, because they were so enthralling. It is not hyperbole to say that some of the stories Judge Phipps has told me seemed so outrageous I thought they had to have been made up. But they were all true. Running through all the stories is the common thread of Justice: Justice for the minority, justice for the disenfranchised, justice for the “little guy.” And Justice is one subject Judge Phipps knows much about. Judge Phipps was raised in Baker County, Georgia, a county so segregated that for years he didn’t realize that white children went to school, too. It was a place where racism was so open that lawyers would use a racial epithet to describe their own clients in court. While in college, Judge Phipps was active with the Student Nonviolent Coordinating Committee and the Southern Christian Leadership Conference during the civil rights movement. During this time he was working on voter registration in Albany, Georgia and was jailed for several days in a cell next to Dr. Martin Luther King. Judge Phipps’ only crime was being in a phone booth at night. He was never charged and was ultimately released. Dr. King shared the meals, brought to him by church ladies, with Judge Phipps. Injustice was all around him. But he could see that if one had the power of the law behind him, he might be able to turn around some of that injustice and start spreading the sweet richness of Justice, instead. So he decided to go to law school. As he so poignantly described in his address when he was named Chief Judge, “I decided that if I get ready, maybe my moment will come.” And so he got ready by becoming a lawyer. The only lawyer even willing to speak to him about a job after law school was (now famous) civil rights lawyer C. B. King in Albany, Georgia. Mr. King hired Judge Phipps and so began an historic career of service in the Georgia Bar.
If I have not yet convinced you about what kind of human being Judge Phipps is, ponder these words from Judge Phipps’s 2013 Law Day speech:
“For generations, lawyers have been at the forefront of the fight for equal justice. Yet, there is still a gap between the theory and the practice of equality. Lawyers must continue to be in the vanguard of the struggle to close that gap. While we are grateful for the gains that have been made, and for those who helped to make them, the question before us on Law Day 2013 is: What are you and I doing to finish the work that remains to be done? As lawyers and judges, we have the special training to do more public good than does a member of any other profession. This profession entrusts us with awesome power, from which flows great responsibilities. Often we will find that justice in the most fundamental sense is being denied persons in our presence, in our community, and in our state. Yet many who have the power and influence to do the right thing, and to encourage others to do likewise, will look the other way, or not even care. A good lawyer is sensitive to the injustices of society, and accepts a reasonable share of responsibility for correcting them. Obviously, one lawyer cannot right every wrong. But do not underestimate what one committed person can do to make the Dream a reality – Equality for All.”
That’s the kind of person who has led Lawyers Club of Atlanta and who may be the person you sit next to at the bar while enjoying a libation expertly prepared by Kenny Smith. Who else might you meet there? Maybe the lawyer who, after having been refused admission into the University of Georgia law school, later represented the person who integrated the college? Maybe the first Jewish lawyer to serve as President of the Lawyers Club? Maybe the first woman lawyer to win a state-wide race for a seat on the Georgia Court of Appeals? Maybe the lawyer who, as a young student at Emory University, marched against white racists and hatred in Forsyth County in the ’80’s? Maybe the lawyer who founded the Diversity Program of the State Bar of Georgia? Maybe the lawyer (now Judge) who defeated a sitting judge who would make litigants kneel in court and pray to Jesus Christ prior to trial, regardless of the litigants’ faith? Maybe the lawyer who shared a jail cell with Dr. Martin Luther King, Jr.? Whoever you find yourself with, as my good friend and LCA member Judge John Ellington would do, ask them “What’s your story?”
A Rising Tide Lifts All Boats,
Robin Frazer Clark
President, Lawyers Club of Atlanta
Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the 50th President of the State Bar of Georgia and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 26 years. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer. Robin Frazer Clark~ Dedicated to the Constitution’s Promise of Justice for All.
The last two Fridays I have spent speaking at Continuing Legal Education Seminars sponsored by the Institute of Continuing Education. My topic: Ethics and Professionalism. In preparing for both presentations, I couldn’t help but think about a dear departed friend who was the embodiment of Ethics and Professionalism, Judge Ed Carriere. I recall as one of the highest honors of my year serving as President of the State Bar of Georgia the day I accompanied Chief Justice Carol Hunstein to Judge Carriere’s home and with his wife, Jane, present, Chief Justice Hunstein published the resolution below. It gave me goose bumps then and it does now in the remembering of it. I wish everyone could have known Judge Carriere. Certainly, everyone who did was changed for the better. I share with you the Joint Resolution honoring Judge Carriere. The Supreme Court of Georgia
Whereas: The Honorable Edward E. Carriere, Jr. has rendered more than four decades of service to the justice system and the legal profession in the State of Georgia; and
Whereas: Judge Carriere earned his law degree at Loyola University in California and was admitted to the State Bar of Georgia in 1971; and
What exactly is an “activist judge” and why should I care? I often get this question at cocktail parties. In legal circles, the answer to the question “What is an activist judge” is usually answered “Any judge who rules against you.” But the term is being heard frequently in the news these days, perhaps because of several rulings coming from the United States Supreme Court and perhaps because of the piecemeal change in marriage equality being played out in various’ states’ Probate Courts on a seemingly daily basis.
An “activist judge” is actually a judge who is seen as attempting to legislate from the bench, a judge who, through her or his judicial rulings, is reading into the law something that is not actually there, or who is trying to create law as she or he thinks it should be even if the statute at issue doesn’t actually say or permit such a ruling. It is a judge or justice who makes rulings based on personal political views or considerations rather than on the law, or who issues rulings intended to have political effects. The label of “activist judge” has become pejorative, usually said with a roll of the eye, or a slight snicker of disdain, as if such a judge has no credibility or they are inherently bad. No judge, ostensibly, wants to be labeled an “activist judge.” For example, in Wisconsin the election for the State Supreme Court is around the corner and a challenger to an incumbent justice claims the incumbent is “activist” and, therefore, should be summarily disposed of. The name-calling also usually only applies to judges in appellate courts, who either correct error in the trial courts below or interpret the current law, whether statutory or common (case made) law, to determine how a case should turn out given its unique set of facts. Whether you deem a judge to be an “activist” sometimes appears to be no more than a political question and sometimes seems to come down to your political beliefs. If the judge ruled in opposition to your political beliefs, you may tend to label that judge “activist.” For example, the Conservative ThinkTank The Heritage Foundation, whose self-proclaimed mission “is to formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong national defense,” has an entire page on its website devoted to calling out what it contends are rulings by activist judges or activist courts. Last month, prompted largely by recent court rulings on gay marriage, an Idaho House committee voted Monday to introduce a resolution calling for the impeachment of federal judges who don’t follow the original intent of the U.S. Constitution.
“Judicial Restraint” is often considered the opposite of “Judicial Activism.” “Judicial Restraint” is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional, though what counts as obviously unconstitutional is itself a matter of some debate. In deciding questions of constitutional law, judicially restrained jurists go to great lengths to defer to the legislature. Judicially restrained judges respect stare decisis, the principle of upholding established precedent handed down by past judges.