Vol. 4, No. 3, Pg. 36. A Judge's Swan Song.

• Author: By Alex Sanders

South Carolina Lawyer

1992.

Vol. 4, No. 3, Pg. 36.

A Judge's Swan Song

36A Judge's Swan SongBy Alex SandersI have been asked to share with you my thoughts on leaving the bench and what the past nine years have been like for me. In memory of Bubba Ness, our esteemed former Chief Justice, I think I will begin with a poem.

The Veteran

by Dorothy Parker

When I was young and bold and strong,

Oh, right was right, and wrong was wrong!

My plume on high, my flag unfurled,

I rode away to right the world.

"Come out, you dogs, and fight!" said I,

And wept there was but once to die.

But I am old; and good and bad

Are woven in a crazy plaid.

I sit and say, "The world is so;

And he is wise who lets it go."

A lot has happened to me since I became a lawyer thirty years ago. As Truman Capote would say, "That's all blood under the bridge." I was a trial lawyer for more than 20 years before I ascended to the lofty office in which, until recently, I was so safely ensconced. Having decided to abandon that office and leave the bench, I feel a certain latitude in being completely candid. In the words of Martin Luther King, "Free at last. Free at last." The readers of South Carolina Lawyer will be among the very first to profit from my newfound freedom.

What have the past nine years been like? To begin with, we must recognize that all judges do not judge from the same perspective.

There is, of course, a big difference in being a judge on a court of appeals and a justice on a supreme court. A judge on a court of appeals has to be twice as smart and work twice as hard to get half the respect of a justice on a supreme court. Fortunately, this is not difficult.

There is also a difference between trial judges and appellate judges. Professor Thomas F. Bergin, one of my professors at the University of Virginia, explains the difference between trial and appellate judges this way. "Judges are like dogs," he says. "They are okay one-on-one, but they are dangerous in a pack."

The animal metaphor I like the best was told to me by another of my University of Virginia professors, Professor Calvin Woodard. He says judges are like monkeys swinging on a vine. The vine is attached at the top, but the monkeys are free to swing right and left, even around and around, at their choice. But, the vine is always attached so the monkeys do not jump around randomly and can be found, more or less, together.

I extend the metaphor: trial judges, not appellate judges, are at the top of the vine, closer to the point of attachment; that is, closer to the source of law. Depending on your point of view, the source may be the common law, the Constitution, the Legislature, or even God.

It is trial judges, not appellate judges, who are closer to the source of law, whatever that source may be. However, because trial judges are at the top of the vine, they are less able to influence its swing. Judges on courts of last resort, on the other hand, are at the bottom of the vine, doing most of the free swinging. I, myself, was an intermediate monkey.

But don't think appellate judges are utterly ignorant of what goes on in the trial courts--up there at the top of the vine. After all, appellate judges read the transcripts (or rather, appellate judges sometimes read some parts of some of the transcripts). The following is an excerpt from an actual transcript that came across my desk:

Q. (Trial judge to the defendant) "Do you want to say anything before I sentence you?"

A. (Defendant) "Yeah. I want you to appoint me another lawyer."

Q. "What's wrong with the lawyer you have?" A. "He doesn't listen to anything I say." Q. (Trial judge to public defender) "What about that, counselor?"

A. (The public defender) "I'm sorry, Judge. I wasn't listening."

38What does a judge do anyway? I think the United States Supreme Court has seriously misled the public as to the function of a judge. Despite the textbook model of a democracy, democratic institutions strive not for majorities but for consensus and, if possible, for unanimity. If you don't believe that, watch the Congress on C-Span. Almost everything is worked out by those delicate compromises so vital to the legislative process. Nothing is ever decided by a one-vote majority. The same is true of legislatures.

This is because politicians, from Henry Clay to George Bush, understand that to decide an important question by a close vote portends instability, if not chaos. After all, a few votes, one way or the other, can usually be changed. At least, that is the hope which always springs eternal.

Some courts also understand this. The United States Supreme Court, on the other hand, regularly decides cases by votes of 5 to 4 and, worse than that, 3 to 2 to 4. Instability in the law, and even chaos in the streets...