Sunday, August 14, 2011

Just because you sit in a garage, it doesn't mean you're a car

Rigid adherence to protocol should never be mistaken for intellectual rigor.

Of course not only do we tend to equate the two, we actually hold it up as model behavior in our courts. We call it precedent. It's what allows appellate jurists to ignore the facts, and the constitution, when they don't want to make a difficult decision. Now the law should be predictable so that we don't find ourselves committing felonies  because one judge somewhere woke up on the wrong side of the bed or had a bad night.

But the law is also organic. It was written by man. Our laws were passed in response to things that were happening at a given point in time. The circumstances surrounding the birth of many of our laws have completely changed over the years. There are things we have now that could never have been contemplated by the Founding Fathers.

DNA, breath testing, drug-sniffing dogs, cell phones, the internet, cars...

None of that was around back in the late 18th century. Hell, none of that was around in the 19th century or most of the 20th century for that matter.

Sitting on the bench requires more than just the ability to look up the local rules or the rules of civil or criminal procedure. Sitting on the bench requires one to "rise above the fray" and engage one's mind in just what it means for a search to be "unreasonable." It requires one to contemplate just what it means to "invoke" one's right to remain silent.

It requires one to be able to take into account the "big picture." When a judge makes a ruling from the bench that judge needs to be aware of what the consequences of that decision are. Judges who dispense "one size fits all" remedies are doing a disservice not only to the legal system but to our communities as well.

Judges are not part of any "team" and should never allow themselves to act in such a manner nor allow others to perceive they are acting in such a manner. Candidates for criminal benches should never sound like candidates for sheriff.

The job of sitting on that bench and making rulings that will affect peoples' lives is an awesome responsibility and that fact should never be forgotten. And to make those decisions based upon a rigid adherence to protocol is a sign that the person sitting on the bench has no business sitting there.

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