Judicial Indecision

Judicial Indecision: Picking a Judge  082510
The Fringe on the Judicial

Judicial candidates Charles Ervin and Thomas Archer.

Many of us are already tired of the November election and it’s still months off.  In some races, notably, the race for Governor, nobody is running.
In one of our local elections, though, the difficulty is that two very good candidates are running. We have to choose one.

We at the Prospect have had our finger to the ground and our ear on the pulse of public confusion on this issue, and we’ll allow that nobody knows both candidates well, but we’ve gathered impressions, both of the candidates themselves, and of people’s perceptions of the candidates.  

Not knowing both well means it isn’t possible to talk about the reality of the persons, but knowing public perceptions, we can talk about who we believe the candidates are.  Until someone drops a revealing DVD in the mail to the Prospect, that’s all we have to go on.

In the interest of honesty, this reporter has formed opinions of the two candidates and their qualifications.  They could be totally wrong, and I reserve the right to change my mind, but here are my impressions:

Archer completely missed a couple of key questions in the Prospect Judicial Candidate Questions.  He was somewhat slow to grasp the complexity of some issues in discussion.  On the other hand, I’d hand Archer the keys to my house without hesitation; the guy is completely real, and I trust him even though I’ve had no concrete experience with him.  He’s also very easy to like.  Most of the dusty and oily people I know, meaning ranchers, timber workers, contractors and the like, are voting for Tom.  There is high local confidence in his views and experience on land use issues.  Further, his “slowness” in our interview might have been patience.  I’m a rapid fire person, and people who take a minute to think about what they’re going to say are odd to me.
My confidence in his technical legal skills is not high.
My confidence in his ability to see the problem from the human point of view is high.
My confidence in his temperament is high.

Ervin never completely misses a question.  He quickly grasps the bones of a complex issue.  He seems to be a skilled researcher.  If I had a complex legal question, Ervin is one of two attorneys I know right now that I’d consider.  I find it easy to talk to him.
On the other hand, there’s something a little edgy about Ervin.  He has the ability to believe himself without doubt; that’s a little scary.   He can get tight-jawed.  He is also so analytical that I join others in wondering if he can add the empathy needed for true justice.  I have confidence that his rulings would be legally correct; would they be just?
He has run the most efficient and costly campaign, working hard and making the most of every opportunity.  He’s listened to people and woven their concerns into his campaign material.  He brought himself from someone nobody knew to second in a field of four.
My confidence in his technical legal skills is very high.
My confidence in his ability to see the problem from the human point of view is so-so.
My confidence in his temperament is not high.

If this was 1950, there’s only be one choice: Judge Tom.
But, it isn’t.  It’s the 21st Century; the state has dropped all pretense that our local courts are really county courts, and cases that start in superior court go to the court of appeals, and on and on.  I see Ervin as writing a more tightly compiled opinion.

In discussion with various folks, some who have given the election little thought and some who have spoken at length with both candidates, my impression of the candidates holds.  Ervin is not well known and just a little intimidating, and Archer is broadly liked but some think he’s not up to the task of being judge.  Both those perspectives are strongly stated: Archer and Ervin are both well qualified and would serve the residents well.

But, which is better?

The majority of a judge’s work is administrative.  There are broadly accepted ways of dealing with the most common tasks the judge faces.  There are judicial guidelines and other resources available to assist in these matters.  Both candidates are well qualified to do this kind of work.
Other kinds of issues are more complicated and far more difficult. These can often include family matters.  It is here that, regardless the robe and gavel, the person inside the judge might allow strong personal or religious convictions to influence a decision.  It is also, paradoxically, here that the judge needs to be more than simply an administrator, and must look for the truth of the situation in the eyes of the participants.
There is a reason we have judges instead of computers with legal programs: only a human can know if another human is lying or not, and if so, to what degree?  Not even a polygraph can accomplish that.
There are many times when a jury is involved, but even then, the jury is composed of people who know almost nothing of what is going on, and the only trustworthy person in the room for them is the judge.  That is where they take instruction, and that is where they take their cues.  The judge has great power to impose legal order in the courtroom, but also great social power to define the situation.  

There are also high dollar cases, where the solidity of the judge’s decision can deter appeal, avoiding J. Doe v Superior Court of Sierra County.
Finally, there are those instances where the law is at odds with itself; they are few but often thorny.  Let’s picture our candidates, late at night, bent over the computer keyboard trying to glean the nitty from the gritty.  Who would do the better job?

Candidly, this editor is evenly of two minds.  There are cases where the defendant would be best off looking up at Archer.  There are times when the stern but discerning face of Ervin would be best.  If I were forced to vote today, I’d have to flip a coin.  I’m hoping one or the other will do something really stupid or obviously crooked and help me decide.

We have only a couple of months to arrive at a conclusion: who do we want for judge?

Editor’s note: Many thanks to Ingrid Larson, who forced this lazy editor to have a discussion of the matter, and who shed light.
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