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Judging the Judges

The respect has faded. The second-guessing is rampant. And the contempt has grown--leaving one jurist weeping on his bed each morning. More and more, ordinary citizens are ...


But there is speculation among court watchers that she may have resigned because her career was blighted by one case. Her first big trial was that of Soon Ja Du, a shopkeeper who in 1991 fatally shot Latasha Harlins, a 15-year-old high school student Du thought was stealing.

Du was convicted of manslaughter and Karlin sentenced her to four years probation and 400 hours of community service.

The sentence enraged some citizen groups, who considered it far too lenient. They tried to oust the judge in a recall effort, which failed by a narrow margin.

"Judge Karlin probably had to raise something like $300,000 to fight off that recall," says Jerry Nagle of the National Center for State Courts.

After the Du trial, Karlin transferred to juvenile dependency court, where she has been ever since. She declined to be interviewed for this story because, she said, she "did not like the way her retirement had been presented in The Times. And I just don't want to subject myself to that anymore."


It is not the "correctness" of judges' decisions that absorbs legal scholars. Judges are, after all, only human. The courts of appeal are set up specifically to address debated decisions.

But the 1990s rush to recall poses philosophical problems with which academics, attorneys and judges must now deal.

At the top of the list is the survival of America's democratic system.

The freedom of judges to decide cases according to their view of the law, without fear of losing their jobs, is basic to the independence of the judiciary branch of government. And that independence is a prerequisite for American democracy, say experts on government and the law.

"If the public hates a decision, of course they should criticize it. That is also a part of democracy," says Erwin Chemerinsky, professor of constitutional law at USC. "But they should let a court of appeals decide whether to overrule the decision."

Threatening to recall a judge because one decision is unpopular can only lead the country downhill, he says.

"Judges must decide cases according to law, no matter how unpopular their decisions, or how angry some citizens become." That is how this country became what it is, Chemerinsky says.

He cites the "judges in the South in the 1950s and '60s who ordered desegregation despite enormous popular opposition. It was a triumph of judicial independence."

Retired Superior Court Judge David Rothman, on the bench for 20 years, teaches ethics to new judges and has written a book on the subject.

"This inappropriate scrutiny of judges has become a major worry," he says. "Judicial independence is the key to integrity, which is the cornerstone of judging."

But it sometimes takes incredible courage to be independent, he adds. And the public ought to try to understand.

Rothman and many others interviewed for this article mentioned U.S. District Court Judge Harold Baer, who ran into problems after a 1996 decision in New York.

In that case, police saw four men loading bags into a car trunk. The men ran as police approached, which made the officers suspicious. They searched the trunk and confiscated 80 pounds of cocaine and heroin.

At the trial of the confessed drug courier, Baer ruled that the confiscated drugs must be excluded as evidence. He said there was no probable cause for police to search the car simply because the men ran away, since many in that neighborhood routinely run from police, whom they view as "corrupt, abusive and violent."

Baer's supporters said the U.S. Constitution "is very clear on the issue of search and seizure, and Judge Baer was simply upholding it." But there was an immense outcry, including a statement of disapproval from President Clinton.

Baer reversed his decision almost immediately after the president weighed in.

"Baer is a federal judge, a man with a lifetime appointment to the bench," Rothman says. "But as soon as the president joins in, he changes his mind. Did he bend to public pressure? If he did, even though he has a lifetime job, can you imagine the stress and pressure on a mere little old county judge in California, who has the threat of recall hanging over him, and who at best has a six-year term before an election rolls around?"

Rex Heinke, an attorney and former chairman of the judicial election evaluation committee of the Los Angeles County Bar Assn., says the "increasing public scrutiny of the courts" could be a good thing, because "almost no one challenges judges, or looks at what kind of job they do."

But scrutiny ought to be based on knowledge of the system being scrutinized, he adds. And that's where the public often fails.

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