328. A great judge, except for that

I was reminded of Daniel J. Martinez (see post 327) by the case of Judge Restaino (see post 326).  Soon after Martinez was acquitted of two extraordinarily brutal crimes that he almost certainly committed, setting off an entirely justified uproar, a friend of the Martinez family wrote a letter to the editor of the Santa Fe Reporter, the alternative weekly.

Unfortunately the Reporters online archives dont go back beyond 2000 and so I cant link to or even quote from the letter.  But I remember the gist: the writer had known Daniel for years, and he was a great guy except for when he lost his temper, and that didnt happen very often.

I was reminded of that by Raoul Felders dissent from the order determining that Judge Restaino should be removed from office.  Felder wrote:

The record establishes that respondent, after a long period of personal stress, while presiding in a domestic violence part, simply “snapped” when he heard a cell phone go off in his courtroom and engaged in what can only be described as two hours of inexplicable madness.  The record also establishes that his conduct over those two hours was a total aberration from his character and demeanor as a judge for eleven years (and previously as public defender for ten years) and that he has received the support and praise of his judicial colleagues, court personnel and community leaders.

So just as Daniel Martinez was a great guy when he wasnt mad enough to rape or shoot anybody, Judge Restaino was a fine judge when he wasnt outrageously abusing his power.  You know, I dont really have any reason to doubt either evaluation.  (Though I do note that, at least in Felders listing, Restainos supporters didnt include lawyers who had practiced before him.)

Felders dissent is actually quite thoughtful and he makes the powerful point that other New York judges have managed to keep their jobs despite behavior that would shame Bob Ewell.   But he also recycles a couple tired themes. 

First: "I cannot find it within myself to destroy this individual’s professional life over this regrettable episode."  Leaving aside the one-free-bite attitude, and the hint of moral preening, how does removing a judge from the bench destroy his professional life?  Only if "professional life" is used as a synonym for "career as a judge."  By that standard, every time Felders firm informs an associate its time to move on, the firm is destroying that persons professional life, because his or her career at the firm is over.  Has Felder ever found it within himself to do that? 

Being a judge is a job.  All that will happen to Restaino is that he returns to his prior job, practicing law.  The very fact that he voluntarily exposed himself to all the publicity his case has garnered shows how important his current job is to him.  From his point of view, it probably feels like the destruction of his professional life.  But when the exercise of power becomes that important to a person – more important, self-evidently, than avoiding public humiliation – its time to relieve him of it.


I am constrained to comment on Commission counsel’s attempt to belittle respondent’s explanation that he “snapped” because of personal stresses in his life. Although Commission counsel argues that such an explanation is not believable because no single triggering event in his personal life had occurred that morning and that prolonged stress cannot explain a temporary loss of reason, I believe that simple human experience has shown that that is simply untrue.

I dont know if Felder has ever been a judge, but hes mastered judge-speak: hes "constrained" to comment in the sense that that word means "want."   And I rather doubt that Commission counsel would have described his argument as an "attempt to belittle" Restainos explanation. 

Its classic judge-sniping to say a person tried but failed to accomplish something that in itself is disreputable.  My favorite example is Justice Brennan on a majority opinion written by Justice Rehnquist in a criminal case: "The Courts attempted obfuscation in Part II, ante, at 135-139, of its total disregard of the statutory mandate is a transparent failure." 

You can practically hear Rehnquist muttering, "Foiled again!  I thought that this time, at long last, my disregard of the statutory mandate would be sufficiently obfuscated to slip past him!"  In the same way, no doubt Commission counsel said in a voice thick with frustration: "Curses!  I thought I could belittle the judges explanation, but it remains the same size as when I began!"

In real life, probably Commission counsel was actually arguing something more along the lines of what the Commission eventually declared in its majority opinion: "every judge is obliged to set aside his or her personal problems upon entering the courtroom".   

You only have to scratch the surface of Felders remark to see something else.  Restainos defense, in essence, was that he shouldnt have been on the bench at all that day, because he was mentally unfit to perform the duties of his office.  That was very like Florida Judge Sloops defense of his similar behavior (he ordered the arbitrary imprisonment of a bunch of people called for jury duty) on the ground that his mental handicaps rendered him incapable of professional competence.  (See post 87.) 

I sympathize with anyone whos feeling overwhelmed and stressed-out on the job.  But when those feelings become too huge to contain within the vessels of our skins, its time to look for another job.  Mental or emotional incapacity is a reason for removing a judge from a position he cant handle, not a reason for keeping him there.

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