Steven I. Platt, BridgeTower Media Newswires
In the wake of the horrific slaughter of five community-oriented journalists – and wonderful human beings – working for my hometown newspaper by a twisted and tormented individual whose resentment and anger at the “media” in the form of the Capital Gazette and the Maryland Judiciary in the form of the court system, our attention should be redirected to the interaction and interdependency of an independent judiciary and a free media.
This is particularly important at a time when the president of the United States has branded reporters as “the enemy of the people” and those judges who dare rule in a way that he does not approve of as “so-called judges.” With the pending appointment of another Supreme Court justice by this president, those of us who recognize the importance of an independent judiciary and a free press should focus on the correct criteria for the selection of the next justice as well as any judge.
Those criteria are judicial temperament, intelligence, ethics, courage and integrity (which cannot be separated), experience and education and, most importantly, the ability to communicate, which includes the ability to listen and understand with an open mind, particularly the arguments and views with which the judge may not instinctively agree.
In recent years, courts throughout country have been faced with an ever-rising tide of litigation. Many of the issues go to the very heart of our political, economic, social and cultural order. The cases involve an inability of the other branches of government to resolve societal disputes that are essentially political and/or economic in nature. Thus, the issues raised before the courts include civil rights; employment rights; and the breakdown of social and family values, among others. We are witnessing great conflict and accompanying stress in our society between groups who take moral and religious positions on matters.
In the areas of domestic violence and crime, judges, pressed by growing numbers of disputes of increasing complexity, are expected to do what no one else can do: predict the vagaries of human behavior. They are expected to exercise wise judgement in the areas where demagogues and talk shows provide simplistic and shallow answers. After rendering those decisions, judges are ethically constrained from explaining or even defending themselves against vituperative criticism if those decisions prove, with hindsight, to be unpopular.
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Reinvigorated defenses
This political and legal culture should compel both the judiciary and the responsible media to reinvigorate our defenses of each other, even when we disagree. That means editorial writers, commentators and reporters should endeavor to fairly explain the complexity of political and legal decisions even those with which they disagree. It also means judges should protect reporters’, editors’ and pundits’ confidential sources and the media’s right, indeed responsibility, to call out lies and abuses of power by elected and appointed officials, including judges themselves.
Despite the tendency of many today to forget it, our government is not a pure democracy in the sense the popular will is to prevail in every matter. Our government is a constitutional representative democracy where the minority is offered protection from the tyranny of the majority, and individuals are protected from government by the Bill of Rights. It is a government not only of checks and balances between the three branches of government, but one of limitation and constraint between the individual citizen and the government. Even if government reflects the will of the majority of the day, the indispensable role of the judiciary is to preserve that balance.
We should never forget that Hitler, Stalin, the apartheid government of South Africa, and every dictator and authoritarian regime of recent history has known this fact. It is no accident that every malevolent authoritarian has sought to seize control of the judiciary – especially the criminal courts – as one of the first acts necessary to consolidate dictatorial power over the people.
The message is therefore clear – a strong independent judiciary is the bulwark of liberty and social justice and a free and unfettered press must call out in the strongest possible way any attempt to limit its express power.
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Greater understanding
Historically, however, the courts have not been exemplary in distributing information to the media and to the public. We have not done the best job of making the courts’ operations and decision-making understandable. This difficulty is exacerbated by the general reluctance of many judges to talk to the media and the ethical constraints which prohibit judges in some cases from doing so, even when they would like to, a constraint this writer believes should be reexamined in certain circumstances, in light of the advent of the age we now live in.
But if judges are to open up, an effort by the media must be evident. The judicial branch of government is different from the executive and legislative branches. When judges make substantive mistakes in their judicial work, they are checked and corrected by the appellate process. No such checks are available to correct illegal or incorrect decisions of officials of the other two branches of government. Nor is there any legal mechanism, short of impeachment, to remove an elected official of either the legislative or executive branches of government.
What we need is greater understanding and communication. A reporter should not have to contend with judges who believe that they are above scrutiny. On the other hand, judges should not be precluded ethically or culturally from explaining their complex decisions if that is called for, particularly if in the context of a political campaign aimed at removing them from office.
To paraphrase Goethe, the judiciary will always be at war with what it ought to be. It is the media and the journalist’s job to describe to the public what judges and the judiciary are and do. Nevertheless, when a reporter or an editor describes what a judge does, the reporter or editor could also explain why and what the judge and court ought to do. In other words, explain how the system should work – then perhaps the judiciary will someday, after all, be what it ought to be.
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Steven I. Platt, a retired associate judge on the Prince George’s County Circuit Court, writes a regular column for The Daily Record. He can be reached at info@apursuitofjustice.com.
