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Apr 8, 2008 
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I’m used to judges going off on tangents. Long-winded ones, bizarre ones, angry ones — it’s all familiar. I once watched one federal judge lecture a fellow prosecutor, a friend of mine, for about 15 minutes about what a travesty it was that the U.S. Attorney’s Office no longer prosecuted enough obscenity cases. At the time, my friend had been a rookie prosecutor for about a week and was performing his first court appearance ever in a status conference in a bank robbery case. For the record, the robber did not hold up the bank with a copy of Juggs. My friend was not imbued with enormous power over the office’s obscenity prosecution policy during his first week on the job. But that was the idea rattling around the judge’s head that day, and he had the black robe. My friend took it stoically, but the accused bank robber looked concerned, as if he was worried that the judge might know something about the magazines he had on the top shelf of his closet.
(As an aside, this same judge, when serving as the U.S. Attorney for the same district, famously wanted to prosecute Coppertone for the advertisement where the dog is pulling the little girl’s bathing suit bottom down.)
Anyway, I’m accustomed to judicial rants. But Alabama Judge Marvin Arrington came up with one that’s new for me.
Judge Arrington asked all the white people in his courtroom to leave so that he could lecture the African-American defendants present.
Arrington, 67, stepped into controversy last week when he asked whites to leave so he could lecture defendants about turning their lives around. The judge soberly noted that the whites were mostly lawyers and staff. He said almost all of his defendants in Fulton County are black.
He thought he would be more effective if he did it before a black-only audience which he said was unfortunate because it caused people to focus on his method rather than his message. Civil society, he said, depends on heeding the message.
The judge apologized if he offended any whites but said he was just trying to do some good. He ticked off a list of crimes to help illustrate why he was delivering a message to African-American youth.
I have no problem with Judge Arrington lecturing people about their responsibility and their perceived culture when he’s off the bench. I don’t even care if he aims that speech just at one racial group — when he’s not wearing the black robe. But when he’s on the bench, he’s not acting in his individual capacity. He’s acting as a supposedly neutral arbiter. He’s acting as a judicial official who is fairly applying the rule of law to the executive branch’s allegations against the defendants, and upholding their rights. When he directs a message to one ethnic group and not another, and when he clears a courtroom (which should be open to all during non-confidential court business) by ethnic identity, he forgets those duties and acts instead like a private citizen venting his spleen. That reasonably calls into question his temperament, his neutrality, and whether defendants in his courtroom will receive due process regardless of race.
This post at Racialicious and the comments thereto demonstrate some of the common race-based defenses of his conduct: that no one should care about being excluded from getting a lecture, that complaints of “reverse racism” from whites are silly, and the like. These miss the point, I think. It’s true that I think it self-evident that a sitting judge should not exclude people from the courtroom based on race. But even more than that, I think that a sitting judge should not single out defendants based on their race for a lecture about good conduct, character, and culture. The judge’s lecture to those defendants implies that they bear some collective responsibility for crime in the African-American community because they are African-American — that when they are in front of him, they are judged in part based on the color of their skin, not based on the rule of law.
But those defendants are entitled to be judged based only what the government can prove about their own actions. Bill Cosby and Pat Buchanan may argue that the pain of their community is metaphorically on their heads, but under the law they carry no such burden. They are no more or less responsible for the community as a whole than the white people who were asked to leave. Judge Marvin Arrington’s talk may have been a good one for a father to tell a son, or a priest to tell a parishioner, or a community leader to tell a lecture hall full of people. But it’s no message for a judge, responsible for equal treatment under the law, to tell a defendant who is brought involuntarily before him by the state.
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Law, Politics & Current Events, Race
