The Myth of the
Trial Court Judge
Well at the trial level, while we are vested with some measure of
discretion, we don't have as much discretion as most lay people
would suppose we do. We are governed by statutes which are the
creatures of the legislature. We are governed by appellate court
decisions, state appellate court decisions, the United States Su
preme Court decisions. What I am trying to say is that in most
cases, what our own philosophical bent is, or what our particu
lar background may lead us to by way of feelings about a par
ticular matter, don't mean a great deal. Because as I say, at the
trial level we are simply trying to apply the law as it's presented
( Judge 6, Career History Interview, p. 32) 1
In this chapter I show how the Tucson judges with whom I worked operate in a political climate in which they present themselves, as in the previous quote, as mere implementers of law, uninfluenced by their own political and social backgrounds. Yet what they must do to become judges, their routes to the trial court bench, requires a significant involvement in local political processes that makes it highly unlikely they are not so influenced.
Historically, in the United States, there has always been a tension in the selection of trial court judges--between wanting judges who are responsive to local community values and political ideologies and wanting judges who are impartial and somewhat removed from such influences. In recent decades, the political tide has moved, and is still moving, toward emphasizing impartiality over local community responsiveness. I suggest this is largely due to the growth in influence of professional organizations of lawyers, such as the State Bar of Arizona, and the lessening (though by no means the disappearance) of the influence of state and county political party organizations over these same processes. This emphasis has intensified the judges' need to appear uninfluenced by anything other than the law itself.
In the discussion to follow I show how organized state bars in general and the State Bar of Arizona in particular succeeded in changing the selection of judges from an elective to an appointive system heavily influenced by the bar and talk about the ideo-