The Judicial Candidates
The Mountain Messenger in the person of Don Russell and the Prospect in the person of my self interviewed the judicial candidates on Friday, 8 October.
First Chuck Ervin was interviewed at the Round Up café. Ervin ordered the chili.
The Messenger had several questions; the Prospect really just one. Very often in the courtroom the judge will see competing claims of truth. How does the courtroom create truth through control of evidence, the judge’s demeanor, expert testimony and other elements?
The Messenger began the questioning and focused on inequalities in the law. For example, if a poor country editor got a $500 ticket, it would mean he’d be doing without for a couple of months. If Meg Whitman got a $500.00 ticket, she could rummage that much out of her couch cushions. How is that “justice?”
Ervin refined the discussion to the various ways a judge can adjust some fines to provide equal punishment for each person, instead of the idea that crime itself has a certain “punishment value”. However, often the fines and other sentences are determined by a legislative body, and the judge can’t make those adjustments. It’s a question for scholars as to whether that’s really “justice” or not.
Because the Prospect had forwarded the “truth” question in advance, Ervin wove that into his other answers, as well, but gave several examples that demonstrated he understood that truth was being distilled or “created” in the courtroom.
He spoke about the judge’s demeanor and how it influenced the proceedings. He talked about how the judge’s body language gave clues to the jury and other participants about how the judge received persons and evidence.
He spoke of the “probative” value of evidence, which means the value of evidence which is useful in determining fact. He listed the various types of evidence in civil and criminal cases, and made it very clear that evidence law is deeply complicated, and that the judge should use that power over evidence to bring forward evidence which is meaningful, but which will not prejudice the court toward either side.
In short, he gave a thoughtful and well-informed presentation on how a judge has to navigate various legal and logical hazards to present the case with as little distortion as possible.
He talked about the limits of the judge’s power, his limited power to investigate on his own. He also talked about the importance of what the judge does: put the human factor in the law.
Ervin spoke about the need for “balance”, avoiding relying on just one way of doing justice. “One size does not fit all.” He acknowledged that the judge, in some kinds of cases, can bring significant change to the lives of real people. He talked of living in a small community and seeing people he knew before him in court.
Ervin said that ensuring presumption of innocence, the rule that the state must prove its case against the person, is a big part of the judge’s role. Prison is very hard on people and their families, and is a solution of last resort. He spoke of the importance of mediation before trial, particularly in civil cases.
Throughout the interview Charles Ervin was relaxed, answered the dual editors’ grilling with confidence and humor, and enjoyed his chili, which he judged “very good.” In the interest of complete disclosure, the Messenger editor had something that splashed catsup; the Prospect editor enjoyed a seasonal pumpkin pie.
Then the interview moved across the street to Los Dos Hermanos.
The Messenger had something brown in a glass; the Prospect had the excellent Enchiladas Del Barrio. The enchiladas prevented the Prospect from asking all the questions it might have.
Archer began by saying he didn’t want anyone trying to “get in his head”. He stated that the people want “integrity and qualifications” in their judge. He said he understood people, cared about people, and had worked for “the little guy.”
He said the judge had to advocate for people, or the machine would “chew people up” because the power is disparate.
In answer to the Messenger’s question of the unequal impact of sentencing, the “$500” question, Archer pointed out that there are often sentencing options which a good judge would pick.
An opportunity arose to ask about a situation in which a law enforcement officer unlawfully denies a citizen of a possession. Archer indicated there were times when he would allow a law enforcement officer what might be an illegal taking.
Archer denied that the courtroom creates any kind of truth, he said the trier of facts would determine the truth.
The Messenger spoke of the unknown variable of the jury, but Archer said the American system was a good one, and asked if the citizens would be happier with professional jurors like France has, or systems where there are only a panel of judges, (like our Supreme Courts).
Then Don Russell brought up a troubling subject: the origins of our liberties. This was a question Tom Archer had trouble with previously. He insisted that the Constitution gave us our liberties, in the Bill of Rights. That isn’t close enough for someone who wants to be judge. Russell explained that in the Preamble to the Declaration of Independence, our liberties are described as coming from “the Creator”, and in the Preamble to the Constitutions where again the Creator is referred to in the “Blessings of Liberty”. We note here that the “Creator” can be anything, including “evolution” or “chance” or “providence,” or God. If you think God created us, then you likely believe He endowed us with a “soul” which some people associate with free will. However we came to be, our liberty, according to our founding documents, springs into being with us, and is resident in us.
Archer insisted our liberties come to us through the Bill of Rights, but those First Ten Amendments (“Bill of Rights” is actually a British term) were added to make clear that we had those and other freedoms. The framers of the Constitution were afraid they hadn’t been clear. The first ten amendments guarantee those freedoms, but don’t limit us to those freedoms.
This is a very important distinction because if you view the individual person as being born with the Creator’s intention of freedom, it is clear that the judge can only reduce that freedom, and it is the court’s business to protect those inborn freedoms. There, the role of government is “deducting” freedom from a person. In the second view, Archer’s view, the government, not the Creator, endows persons with freedom, and is completely able to retract those freedoms at will.
Eventually, Archer and Russell worked out the distinction, but by then Archer was pretty tired of the questions. He stated that people have the right to be free, and parents have a fundamental right to their children.
The editor of the Prospect, as he often does, began a sentence with a crude word. Mr. Archer called the interview to a close. The Prospect editor, as he often does, apologized and offered to ask the question again.
But Archer was relieved to be off the hook, and grabbed his hat. This editor was unable to capture perfectly his words, but he said, essentially, that there had been four candidates’ nights, and he’d answered enough questions. He said “I don’t have to answer to you, and I don’t have to answer to you” thrusting his finger at each editor in turn, and said he’d leave it to the voters. He said something about truth being truth, and about our questions being nonsense and said goodbye. He made what he might have thought was a dignified exit.
The Messenger editor was deeply relieved; the difficult decision of choosing a judge was over.
The Prospect editor was a little disappointed at not being able to finish the excellent enchiladas, but got a box for later.
There is really no contest, in my mind. Ervin took our language and our esoteric but still highly probative (see, we learned something!) questions seriously, and answered with depth and frequent references to the law. He understood that truth is a very slippery thing, and that the rules of evidence are very complicated for that reason. He acknowledged that there are many formal and informal ways the judge influences how the “truth” is arrived at and gave evidence he understood how they work. He wove the ideas of “presumed innocence” and “burden of proof” into his answers.
Most of all, he showed the ability to remain unshaken by the roughness of our questions and our attempts to cause him to say something stupid.
Archer, on the other hand, didn’t demonstrate an understanding of the ways judges can effect what the trial “proves” is “true”. His view of truth is that it lies there, like a stone under the duff, and we just need a Decider to brush the needles away and lift the stone. That very simplistic view of truth is in conflict with what hundreds of years of philosophy, including the philosophy of law, have determined about truth, see HERE
Finally, the editors didn’t actually get around to getting around to making Archer say something stupid, indeed, I was very busy with succulent beans, perfect rice, delicately prepared pork and just the right amount of rich sauce, while Russell greased his tongue with brown liquid in a glass. I’m probably just lucky to have been the one to set him off, but as Archer was thrusting his finger I was thinking “this is a judge?” Sure, Russell and I are hard to take, especially both at once, but the position is “judge”. A judge should be able remain objective in the face of unpleasant emotions.
I’d still recommend Tom Archer as an attorney for several different matters, but not as a judge who might deliver a ruling or sentence with implications for the Supreme Court, or as a judge who might have to deal with some pretty obnoxious, but still innocent, editors, er, defendants.
Chuck Ervin isn’t asking for endorsements; if he were, I’d give him mine. (Some candidates who DO accept endorsements still don’t want mine, go figure!)