Judge Robert Lemkau and the Can of Worms

On January 31^st of this year, a young man named Stephen Garcia shot his 9-month-old son to death, then killed himself. Sadly, these kinds of domestic tragedy happen time and time again. What made this one stand out so glaringly was that the boy's mother, Katie Tagle had been furiously petitioning the California courts to restrict the father's access to supervised visitation only, based on what she said was a chain of highly irrational communications from the biological father. Not only did the courts fail to grant her the protection she sought, the final judge to rule, Robert Lemkau, actually called her a liar. He may have had no irrefutable evidence Ms. Tagle was telling the truth, but he certainly had none that she was lying.

I do not wish to belabor the details of the matter, as they have already been extensively reported, including a thorough article by Associated Content contributor, Ron McQuade published on February 21, 2010. Feel free to read it if you are unfamiliar with the events and repercussions.

Instead, I want to comment extensively about one of those repercussions that I find even more disturbing than the case itself. Yes, of course, the judge's ruling was a tragic mistake, but, as it turns out, Judge Lemkau will have to face the consequences of his conduct in an election, this coming June 8^th. His political opponent is a prosecutor named James Hosking. The judge's opposition among the people is determined and furious.

What I am most concerned about is that there is a movement afoot, now exacerbated by this case, to eliminate the election of judges in those 33 states that call for the procedure, including California.

The argument, advanced by many learned people, such as Sandra Day O'Connor, is that judges' impartiality should not be compromised by the whims of a fickle electorate. Okay, fine, and what about our lawmakers? Should their ability to pass sound and just legislation not be compromised by that always-fickle electorate? And what about our presidents? How can they formulate enlightened policy, if they are continuously going to be bothered with having to answer to the voters? No doubt about it, democracy is an awfully messy process.

Let us never lose track of the very important idea that we are supposed to live under a government, as Mr. Lincoln put it one November in Gettysburg, "of the people, by the people, for the people." Let us remember that the framers of our constitution wisely considered the judiciary to be a co-equal branch of government. If presidents and representatives need to be elected, why not judges?

Of course, the founders put in a "fail-safe" mechanism, whereby the members of the Supreme Court and appellate courts are not subject to election and can overrule lower-court decisions, just in case one of those "politicking" judges gets it wrong.

To be sure, campaigns for judgeships are no more above outrageous demagoguery than are the others, but that is no reason to eliminate them. As an aside, I am sometimes amazed at how desperate candidates for office will gladly trample the Constitution underfoot in an attempt to appeal to the voters. In 1989, when Douglas Wilder was running to be governor of Virginia, he scored a good many points against his opponent, former attorney general and ongoing idiot, Marshall Coleman, by pointing out Coleman's abysmal record on women's rights and issues.

The Coleman camp fired back with an ad, the jist of which was: You think Doug Wilder is such a protector of women? Well, guess what? Mr. Wilder would allow rapists to confront their victims, face-to-face, during their trial. That's not very considerate of women's rights at all, is it? Um...Mr. Coleman...there's this obscure codicil in some pinko Commie law known as the Constitution that affords the accused the right to confront his accuser. Some malarkey about "due process," I suppose.

The point is that politics and democracy-particularly ours-are not pretty, but they represent a system that millions and millions of people throughout the world have wanted to live under for centuries.

If I may go back to Judge Lemkau for a moment, there are a number of mitigating factors to his decision, not that I think it was right. For one thing, two other judges before him had ruled that Garcia was not a threat to the child. For another, as Lemkau himself said, a restraining order is not going to stop a determined psychopath, bent on murder and suicide, from carrying out his plan. All that might have happened, with the restraints in place, is that the killer would have shot both mother and child dead before turning the gun on himself. And, while Katie Tagle may have been willing to sacrifice her own life for her son's, that was not the way the scene would have played out. Garcia's plan, I'm sure, was for everybody to die...there was no either-or about it.

Also complicating the issue was that, while it is highly probable Garcia made the threats he did, there was no credible evidence of them. He may have been crazy, but he was not stupid.

On the other hand, what would have been wrong with giving Ms. Tagle a temporary favorable ruling while the police and other appropriate parties worked to determine where the truth lay, instead of flat-out telling the lady she was a liar? I can't imagine why a solution like that never seemed to cross the judge's mind.

And, remember, Robert Lemkau is not, by any means, the most outrageous judge who ever sat on the bench. There have been hundreds and hundreds of judges, throughout our history, who did not belong on the bench, and it has been a good thing, not a bad thing, that the people of their jurisdiction get a chance to vote them out, if they feel the need arises.

Another point to remember is that most voters do not follow judicial elections the way they follow what they consider "more important" ones, like for president or governor or senator. How many of us really don't know what we're doing, once we get past the level of our congressman in the ballot booth? The plain fact of the matter is that, absent outrageous conduct, incumbent judges tend to stay on the bench and very frequently run unopposed. Still, it is good that the voters have that check.

I feel terrible for Katie Tagle, and, even though he made a miscalculation that may and ought to cost him his job, I even have some empathy for Judge Lemkau. But, long after the two of them have passed from our consciousness, the fate of judicial elections will still hang in the balance. Let us please not make that very important concept a corollary victim of this whole tragic affair.

Sources

Verizon Central Newsroom

Ron McQuade, Associated Content

Wikipedia