In 2002, Governor Jeanne Shaheen appointed Jennifer Sargent to the New Hampshire District Court. In 2010, she served at the New Hampshire Attorney Discipline Office. Over her last six years at Dartmouth, Professor Sargent has taught Writing 5, Writing 2-3, and a First Year Seminar. She developed and teaches an upper level writing course, The Written Judicial Opinion (WRIT 43/GOVT 60.02).
I was a judge. I was appointed by a governor and wore a black robe. I had a lifetime appointment (well, really an appointment until age 70, when the legislature assumed I and my fellow judges would become suddenly incapable of making a decision). I sent people to jail, evicted people from their homes and took away their children. I sat in judgment and decided society’s good and bad, not so much by the character of an actor but by the substance of an act. I decided the legal right from the legal wrong, though sometimes there was only a best or least harmful decision and nothing about it was right. In 2010, I resigned from the bench by choice. I broke up with the judiciary. I was, in my mind at the time, a judicial failure. But as with most relationships, reflection brings revelation. The bench and I were never a good fit, and we grew apart.
So many lawyers I know want to be judges. I think they believe becoming a judge is the ultimate legal promotion. Perhaps it seems to them that having the control and power over everyone and everything in the legal system is some expression of their incredible legal ability. Judges with any sense of introspection learn quickly that no one around them says much of what they do is wrong or bad or awkward. A day as a judge is like a day in the life of the emperor with no clothes. In a way, this makes sense. The judicial system is the last system in America that resembles a system of royalty. People stand when a judge enters and leaves the courtroom. Judges sit up on a bench – a desk set higher than any other place in the courtroom. People stand to address the judge, if only to utter even one word, and they stand when the judge addresses them from her seated position, peering down. Maybe some judges actually like these trappings of honor and respect, but most judges I know feel they are necessary evils of the job – the theatrics to show power and authority. People shower an obscene amount of deference and accolades on judges because of what they are and not who they are.
I remember quite clearly how I became a judge. I had just come off of a huge win – the acquittal of a client on first and second degree murder charges. The case had taken about two years from start to finish – so long that I had actually gotten pregnant, had my son and moved to a completely different part of the state in the interim. I had maintained a regular case load the whole time. I spent much of my maternity leave in the office, nursing my son as I negotiated plea bargains and drafted motions. I felt like a super hero, juggling a million different things at once, kicking ass and taking names. Governor, and now Senator, Jeanne Shaheen, knew of this case, as it uncovered questionable conduct by some officials and employees at a state-run institution. My colleague, Jeff, came into my office one day and said very nonchalantly, “There’s a judicial vacancy. You should apply. You’d be good at it. You’d be fair.” “I would be fair,” I thought. I would be a good judge. Being fair and being smart would make me a good judge. The judicial application and vetting process was intense. A few months later, I got the governor’s phone call. At my swearing in ceremony at the state house, I took my oath to do justice and uphold the constitution.
My desire to be fair was my undoing. Judges determine what facts are credible based on the same criteria as anyone else. Judges assess whether the facts are logical, consistent, likely, and understandable. They also decide what facts are more or less likely to make a matter an issue one way or another. When it comes to whether judges have all the facts relevant to a matter, however, they operate under the obviously false assumption that they do. No judge is naïve enough to think she has all the facts. Judges must trust that the people who come before them and present them with the facts will know enough to give them all of the relevant facts in a reliable way. The legal system has rules about what the judge can consider (or allow a jury to consider). Sometimes, the rules prevent the judge or jury from considering certain facts, in an effort to have the fact finder render only a factually correct verdict. It is a curious thing that the process seeks to protect individual rights and liberties to the point where it excludes facts that could be extremely informative. What most non-lawyers do not understand is that the process seeks to exclude only unreliable and prejudicial facts. I am too cynical to espouse that the adversarial legal system seeks a moral truth, but I can say that it seeks a factual one.
The rules of evidence and procedure attempt to make sure judges and juries get the facts they need to make their factually and legally correct decisions. Yet, as more and more people must access the courts without legal representation, substantive legal knowledge, and knowledge of the procedural and evidentiary rules, judges cannot blindly rely on that assumption that they receive the facts that they need and are legally entitled to review. At this time in history more than ever, people are forced to represent themselves in legal matters. Wealth buys good representation these days, and good appointed counsel in criminal cases is the exception rather than the rule. With such inequities comes the harsh reality that judges make decisions that may be right on the facts they have before them, but wrong based on the actual factual scenario.
The legal system is a complicated one. Most non-lawyers I know (and even some lawyers I know) do not know what or how much they should tell a judge about their case. I found myself making decisions that affected people’s lives with the hope, not the knowledge that I had been told all I needed to know. Judges must have the intestinal fortitude to believe they did the best with what they had, and that what they had allowed them to render the correct result. Some judges are better at believing this than others. I cannot help but wonder if many judges are simply satisfied with a correct legal result or even equate a correct legal result with a correct actual result. If they are, that is just fine – the system asks them for the correct legal result. What is fair in the legal system is the correct legal result. My problem was that I became acutely uncomfortable with the inescapable conclusion that a fair and correct legal result was often an unfair actual result.
I did everything the system told me to do. I followed the rules and worked hard. My judicial evaluations were stellar. I had an excellent reputation and the respect of colleagues, lawyers, law enforcement and litigants. I had all the external validation I needed to tell me I was a good judge doing my job very well. But what I came to lack over eight years was internal validation. During my years on the bench, I supplemented my experience teaching expository writing and law. For a little while, the fairness and truth that I imparted to my students made up for what I could not impart from the bench, but teaching did not assuage my conscious for long. I did not want to be a decision maker in this particular judicial system, even though I respect it so much. It was a crushing realization that I could be judicially fair without necessarily being truly fair.
After eight years on the bench, I stepped down to become a full-time professor and practicing lawyer again. People reacted with shock and awe. “You gave up being a judge?” they would say with disbelief. Some people acted like I was committing career suicide. In fact, I almost changed my mind when I received an anonymous letter from someone purporting to be a lawyer, asking me to reconsider my decision to step down. “You are one of the judges who we -- all sides -- can count on for fairness and due process,” the letter said. I felt so guilty. Here I was, vacating my position after the state put so much time, effort and tax payer money into choosing me to mete out justice with fairness. I perseverated over whether I had a social, moral and even governmental obligation to remain in the job as a matter of public service. But inside, I knew I was not good for the job and it was not good for me. What made me a fair person was my internal compass, and as a judge, I came to constantly doubt that I had enough real information to get it to point north. I could be a fair judge, but being a fair judge did not make me a fair person. I wanted to be the fair person I was before I became a fair judge. My personal fairness had been important enough to set me apart from others during the judicial nomination process, so surely it showed more than my capacity to be a fair judge. It had to have shown what kind of person I was. I wanted to live that personal fairness and not just expose it when appropriate.
My judicial career was not a “failure to launch.” In fact, it launched quite well. Unfortunately, I think it launched without me, if that makes any sense. I will always wonder if I disappointed the system or the system disappointed me. In any case, as I tell my kids, life isn’t always fair.