Judges (like trucks) can sometimes throw a wheel or blow a gasket and run quite off the road, so to speak. Sometimes it makes a difference, sometimes not.
In a recent case, for example, a clergyman was convicted of a sex crime against a minor. In sentencing him the judge opined that Almighty God in His infinite mercy might pardon the offender, but the offense was sufficiently grave that sentence must be imposed, etc., etc.
It is apparent that judges are not paid to read the mind of God and have no peculiar gift for doing so. Still, since your typical judge veers toward the divine whenever he accelerates, nobody should mind these occasional excursions into philosophy, as long as they do not interfere with sound comprehension of American law.
The question here was not the mercy of God, so the judge's notions on that point are beside the point. The only thing to be decided here was what constitutes a reasonable punishment for a sex offender, and as long as the judge produced one that did not send the republic into utter orbit, no harm is done by his musing on divine mercy. It is settled in our law, after all, that a cat may look at a king. This is a case, then, in which a judge's rambling about does no harm that I can see. But consider another recent case in which a drunk driver was sentenced by a judge to some reasonable and appropriate punishment. So far so good. But then the judge had the bright idea, why not affix a bumper sticker to the drunk driver's car saying WATCH OUT -- This Driver Is a Convicted Drunk or words to that effect.
The question arises what happens when the archbishop of York visits the town and happens to borrow the car in question, and is subjected to gross humiliation from motorists who yell at him, "You goddam drunk."
A number of sane people objected to the judge's bumper sticker, naturally, and I saw this judge on television explaining her arguments for the novelty. She was, I think, a blond, and certainly was young and cute as a bug and I figured she was just trying to do her bit to keep drunks off the highway. No tremendous harm was done, possibly, and who doubts some competent court will correct her pretty bumper-stickered head. Still, you can see how unfair the sticker would be to the archbishop if he happened to visit and borrow the car.
Mind you, I do not say this judge was wrong because women judges usually are. That would be a sexist argument and I do not make it. The governor of Virginia, for example, is neither young nor cute, yet appears to favor keeping people in prison (once they are there for some crime) until they learn to read and write. The governor himself can read and write and is a great friend of literacy. His reverence for learning is such that he would keep an illiterate criminal in prison until he by gum learned to read "Yertle the Turtle" or the Constitution or something of the kind.
Your average southern governor is pretty gun-shy when it comes to imposing literacy tests, but it can be argued that literacy needs special care and stimulants in some jurisdictions. Many people thus feel the governor deserves honor for lighting one small candle in darkest Richmond.
All the same, there is some sentiment that an American should not be clapped into jail or detained there unless he has been charged and convicted in open court of some crime, and I doubt any legislature in Virginia is going to find illiteracy a crime.
But we must not imagine these new wrinkles in the law surface only in remote outposts of the empire. No sir. Here in Rome itself, as you might say, novelty arises.
A local judge was presiding over a criminal case in which defendants were alleged to have committed illegal acts while protesting abortion. Halfway through the trial it was remarked the judge himself had taken part in the protest parade.
The parade was legal -- there is no thought that the judge was guilty of a crime. The main problem was that by marching, his impartiality was therefore suspect.
Nonsense, he said, he was still quite able to expound and lay down the law, and his march in the parade did not cloud his judgment or impartiality at all.
If you tart up the facts a trifle, to make the issue clearer, you could dream up a case in which a judge had a batch of Charles Manson types before him, charged with murdering a few folk. Suppose somebody complained the judge had previously hobnobbed with them, or lived in their communal house, and suppose the judge argued there was nothing wrong with living with them in the past, since they were not doing anything illegal then. Furthermore, he might argue, his residency amongst them would not cloud his judgment in the least, when it came to laying down the law about murder. And this might well be true, yet many would say the judge should not preside over that case.
In the real Washington case arising from the abortion protest, some people came forward to point out the judge has a long history of fairness, and is a man of unchallenged virtue and has never in his life kicked a little kitten, as you might say.
But the question is not whether the judge is a fine man and a fair man. The question is whether a judge should preside over a criminal case (with power over the freedom of citizens) arising from protests in which he himself has taken part.
It is weird, if you ask me, that sometimes judges cannot see in 10 years what anybody else can see in two minutes.