The Commission on Judicial Performance speaks on the 3rd District Court of Appeal: What have we learned?

The lessons are many but, first, Jon Eisenberg was right.

His disciplinary complaint against three justices of the 3rd District Court of Appeal was vindicated by the Commission on Judicial Performance. After undertaking its investigation, the CJP reached stipulated findings with former Presiding Justice Vance Raye that he failed to do his job. On his administrative watch, civil appeals languished for years, juvenile cases did not receive priority, and criminal sentences were served before appellate review was completed. These were grave injustices to the parties awaiting a timely decision.

Mr. Eisenberg, standing nearly alone, proved his case. He staked his considerable reputation on a bold disciplinary complaint that most lawyers would not have touched. His pursuit of CJP proceedings to address unconscionable delays was an act of professional courage.

But, before we move on, it remains questionable whether Mr. Eisenberg’s drumbeat of negative statements about the judicial branch in the media, after publicly divulging his complaint, was fair play.

The CJP did its job, despite sustained public pressure to reach a certain result. The critical comments went beyond First Amendment expression. It was below the belt, for example, to blast the California courts for being unable to “police themselves,” before the agency entrusted with making this determination had spoken.

Among the golden rules, just because you say so does not make it true – particularly in a system that presumes innocence. Likewise, it is not enough for lawyers to convince themselves. They usually do. The decision maker must be persuaded through adjudication.

We do not demand that juries reach preferred outcomes. Why insist, under pain of public condemnation during deliberations, on a certain result from the CJP? Like a jury, it includes nonlawyers guided by common sense (and unencumbered by law degrees). The outcome here was not a whitewash and there was no reason to presume it would be.

These are not niceties. A fair result, one trustworthy and reliable, hinges on a fair process – and respect for it. Sunshine may be the best disinfectant, but Watergate-like conspiracy allegations emit more heat than light. It is not a good precedent for the most capable among us, however salutary the goal, to lob repeated verbal grenades at the judicial branch.

To the extent this sounds sanctimonious, I express these views reluctantly. If lawyers do not defend the judiciary against debasing attacks, no one else will.

Especially at a time of unprecedented assaults on the legitimacy of government, the CJP was entitled to the benefit of the doubt. But time to move forward. Now the work begins in light of the CJP’s findings – with credit, again, to Mr. Eisenberg for filing his complaint.