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Judges and Judiciary

Oct. 2, 2023

Times, they changed

Many decades ago, judges were more guarded about who they truly were as human beings. Today most are more willing to reveal their true personality.

2nd Appellate District, Division 6

Arthur Gilbert

Presiding Justice, 2nd District Court of Appeal, Division 6

UC Berkeley School of Law, 1963

Arthur's previous columns are available on

Did anyone notice that I skipped my September column, #330? Probably not. Who cares? Have you noticed that in newscasts and newspapers, when a regular-appearing commentator or columnist is absent, someone will say or, in the case of print media, write, “S.J. Prufrock is away.” Well, we know they are away, but why, and where did they go? I am probably the only person who asks such a nonessential question, even though I am not interested in the answer. The person away could be home watching television. So, I will conclude this paragraph and proceed with the subject at hand, and not reveal why I was allegedly “away” last month. If anyone really cares, here’s a teaser: I was not away.

When I first became a judge so many decades ago, I was on a court that no longer exists, the Los Angeles Municipal Court. As soon as the stagecoach let me off in front of the courthouse, I kept my emotions in check. Guess you caught on that the stagecoach gag was an exaggeration and not all that funny. In fact, Bob Dylan had observed a decade earlier that “The Times They Are a-Changin’.” He won the Nobel Prize for literature. Huh? A topic for another day. Many decades ago, I lost count, judges were more guarded about who they truly were as human beings. Today most are more willing to reveal their true personality.

Of course, judges, like everyone else, are subject to human frailty. I suspect, hope, that most judges know that. But whether they do or not, there is less reluctance to acknowledge this than in the past when there seemed to be a perception that doing so would adversely affect their judicial status.

In a past column, I reviewed the book “Tough Cases: Judges Tell the Stories of Some of the Hardest Decisions They’ve Made,” (The New Press, 2018). In “Tough Cases,” judges who have decided controversial and difficult cases wrote about their doubts and stress in deciding those cases. How will their rulings affect the litigants and the public?

Judge George Greer in Florida explains how he arrived at the agonizing decision to terminate life support in the Terri Schiavo case. He had to contend with emotionally charged conflicts among the parties and within his own psyche. His religious views conflicted with his decision. He stated a truth all judges face: “As much as you read, and as well as you listen, and as hard as you think about a case, for a good judge there is always doubt.”

Family law Judge Jennifer D. Bailey was assigned the Elián González case. She ruled as she had to that, after Elián’s mother drowned in her attempt to escape Cuba with him, custody belonged with Elián’s father in Cuba. Despite all the threats from the public, Judge Bailey ruled as she must. She said what all judges know – despite political pressure, judges simply “do what they are supposed to do.”

This reminds me of the apt remark by the late Justice Otto Kaus concerning judges facing the political consequences of their decisions, “It is like taking a bath with a crocodile in the bathtub.”

Shifting the focus slightly, I recently chaired a program for CJA with a panel of judges who write in genres outside the ambit of the judiciary. And in many respects these talented judges are successful writers who in their works reveal the depth of their feelings and concerns about life and the human condition.

For example, in Judge Timothy Fall’s book, “Running for Judge: Campaigning on the Trail of Despair, Deliverance and Overwhelming Success,” (Wipf & Stock/Resource Publications, 2020) (available on Amazon), the title says it all. On the jacket of his book, Judge Fall writes that “[t]his is a mental health memoir even more than a memoir of a judicial election.” He has also published compelling stories that I commend to you.

Justice William Bedsworth, better known to some as “Beds,” is a columnist par excellence. In addition to his many columns published in the Orange County Lawyer Magazine, his published works include “What I Saw and Heard,” (Syntext Publishing, 1994); “A Criminal Waste of Time,” (American Lawyer Media, 2003); and “Lawyers, Gubs, and Monkeys,” (Vandeplas Publishing, 2015) (all available on Amazon). He has won numerous awards for his insightful humor that reveals so much about the human condition. His compelling columns induce laughter and insight. I am an avid fan of all that he writes, including his judicial opinions.

Hon. Anthony Mohr (Ret.) wrote “Every Other Weekend: Coming of Age with Two Different Dads,” (Koehler Books, 2023) (available on Amazon). Again, a revealing title. Judge Mohr’s prolific work has appeared in numerous anthologies, and he is the recipient of numerous literary awards.

Hon. Eileen Moore wrote “Gender Results: Hollywood vs the Supreme Court: Ten Decades of Gender and Film,” (Cool Titles, 2014) and “Race Results: Hollywood vs the Supreme Court: Ten Decades of Racial Decisions and Film,” (Cool Titles, 2011) (both available on Amazon). Justice Moore’s compelling works explore the exploitation of race that occurred in the movie industry. Her lucid style captures the reader’s attention. She has earned well-deserved praise for her scholarly and readable judicial opinions.

We discussed the works of these talented writers and explored to what extent, if any, their role as jurists affected their nonjudicial writing. Common sense and sound judgment make the transition easy.

The panel members, me included, found that our writing is salutary and liberating despite the time and hard work it takes. I asked the panel members, and myself, why we write. Justice Moore answered the question with refreshing candor, “I don’t know.” We do it because we just do it.

There are numerous other judges who are talented poets, musicians, painters, athletes and explorers, who, in addition to judging, enjoy rich, productive lives. I hope to interview some of them for future columns.

After writing this column, I now realize how tone deaf I was in my opening paragraph. I apologize for my sarcastic tone. I had COVID, took Paxlovid, and got COVID again. I did not have the will to compose September’s column. Sorry #330.

And one last thought about Justice Moore’s candid response to why she writes. When most of us are asked a question, we feel compelled to respond, and in my case, often too quickly. So I leave you with this poem translated by Nabokov by an anonymous Russian poet:

Be silent, hide away

and let your thoughts and longings rise and set

in the deep places of your heart.

Let dreams move silently as stars,

In wonder more than you can tell.

Let them fulfill you and be still.


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