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THE DARK SIDE: Reality matters, not perception

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.


  1. With all due respect David, I would go with Justice Stevens on this. The question is not, as you put it, whether it is more important that the judiciary actually be fair rather than just appear to be fair. The simple fact is that neither is sufficient alone. Due process requires BOTH fairness and the appearance of fairness. Court systems rely on the public perception of their integrity and lack of bias. That is why due process, as well as state statutes, require judges to recuse themselves, not merely when they believe they cannot fairly decide a particular case, but also when they reasonably could be viewed as biased.

    The manner in which judges are selected does not magically created judges with Solomon-like wisdom out of mere human beings. Rather, the process either enhances or reduces those all-too-human impulses that all judges have. Choosing the right method of picking our judges will not magically make them all fair, but will increase the likelihood that they will be fair.

  2. This column mixes two completely different things and then declares victory. I love “The Dark Side” because it is like watching an episode of the “Twilight Zone.” Nothing is really what it appears until the end when you get that “zinger.”

    Justice Stevens was talking about Congress and the presidency, not our court system. Our “system” of making laws does not work just fine. It is an abomination of the wealthy and powerful who make laws that suit the rich and powerful while leaving the common man in the dust to pick up the pieces.

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