THE DARK SIDE: Reality matters, not perception

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From time to time, I hear people say something like, “It’s not only important the judicial system be fair; it is important the judicial system be perceived as fair.”

But as a working attorney, I know the only thing that matters is the judicial system actually is fair and independent.

You will never hear an attorney who actually earns a living representing real people express concern about perception of justice. And the reason is quite simple: If you are an attorney who earns a living representing individuals, then, at some point, you will represent immigrants to this country. And if you represent immigrants, you will, from time to time, represent people who were born in a country where the rule of law does not exist.

They may have once lived in a country that lacked a fair and independent judiciary, and they don’t believe we have a fair and independent judiciary, either.

They may even suggest bribing the judge. If they lose, they may believe their opponent’s attorney did bribe the judge.

So, you tell the client the judge who heard the case ruled as he or she did because he or she honestly believed that was the correct ruling. You do not mouth platitudes about the importance of perception.

You tell the client that, for a reasonable fee, he can appeal.

In short, you defend the integrity of the United States judicial system, win or lose.

You don’t treat misconceptions seriously because that only reinforces and legitimizes those misconceptions.

Of course, out in the courthouse hallway, when it’s just us lawyers, we mock the judges mercilessly. But we do so on an individual basis because we represent individual clients in front of individual judges.

We do not suggest that if only we selected judges in a different way or if the judiciary had more members of a certain group, the system would magically become fairer. An attorney who suggested such a thing in a courthouse hallway, to other attorneys, would be branded a simpleton unfit to converse with serious adults.

Two years ago, now-retired Justice John Paul Stevens wrote in a dissent, “A democracy cannot function effectively when its constituent members believe laws are being bought and sold.” Citizens United v. FEC, 130 S. Ct. 876, 954 (2010).

But in truth, as long as laws are not actually being bought and sold, the system functions just fine.