Judge Kane

My friend and colleague, Richard P. Matsch, died May 26. He would have celebrated his 89th birthday on June 8.

He had served in the Army in Korea from 1953 to 1955 as a counterintelligence officer. He graduated from the University of Michigan with a bachelor’s degree in 1951 and from its celebrated law school in 1953. His high achievement in academics was recognized by his election to Phi Beta Kappa and the Order of the Coif (the law school equivalent of Phi Beta Kappa).

Before his appointment to U.S. District Court, he served as a bankruptcy judge, an assistant U.S. attorney, a Denver deputy city attorney and as a partner in the law firm of Holme Roberts & Owen.

That is his resume, but it is not his description. What needs to be said is that he was a judge par excellence. What does that mean? Federal judges are appointed by the political branches of government, the legislative and executive. They are appointed for life and are barred after appointment from participating in political activity. They are well-paid and conform to strictly applied rules of ethics and financial accountability. Corruption is simply not tolerated.

A federal judge understandably has personal views on the subjects of cases assigned to him or her, but those views are irrelevant to the work and decisions that federal judges render. Indeed, federal judges are ethically obligated to keep their personal views out of their decisions. Much as physicians must treat each patient with the best of their learning, art and ability, no matter how much or little they approve of them, judges are bound to apply the law without fear of favor. The essential concept is adherence to the rule of law.

That phrase is bandied about and tends to become a slogan rather than a reality. Its meaning, however, provides the measure of what a judge must be. The rule of law means public officials do not exercise any authority that is not given to them by a legitimately constituted higher authority. This higher authority is expressed in regulations, statutes, Supreme Court opinions and the Constitution.

Federal judges must approach each case with attention to details. Is the law clearly expressed so people can understand it? Does the law govern and limit the actions of public and private citizens? Is the law adopted in compliance with the highest standards of decency and fairness expressed in our Constitution and traditions? Does the law comport with society’s standards of fairness and morality? For a judge, the law is not a description of what people do, but of what as a society they aspire to. A judge is morally obligated to strive to know and express the felt convictions of our culture in accordance with these standards.

The discipline of judging means a judge has no business imposing his or her own sense of right and wrong on the rest of society — and certainly has no right to impose some religious belief or formula for uniformity based on changing economic or political theories or the desires of any political party or faction. A judge must be able to articulate his or her rulings in order that conformity with the felt convictions of our culture is recognized. Any appraisal of a judge must begin with this fundamental precept. The inquiry about any judge should be based upon this criterion.

Is there a sustained performance in decision making that demonstrates the judge acts with independence, scholarly preparation and compassion?

An individual’s personal philosophy or preferred ideology has nothing to do with the performance of a trial judge. Like the centurion in the Gospel of Luke, a judge is “set under authority.” Restless under authority? Perhaps. Irked by authority? Occasionally. Nevertheless, it is the trial judge’s duty to abide by authority. In fact, rigid adherence to any particular ideology or political viewpoint should be tantamount to disqualification.

The trial judge’s duty is to find the truth in an array of often confusing facts and to apply the law governing those facts with clarity. Proven ability in the law, earned respect from those in contact with the system and character traits that withstand the test of considerable exposure to stress are the qualities essential to right judging. The judicial office will never fill an empty bag of patronage.

Judge Richard P. Matsch revered the rule of law. At considerable personal sacrifice, he dedicated his life and his abilities to the discipline of judging. He consistently followed the path of the law and adhered to the rule of law, not popular whim or personal caprice or political power. As such, he was a judge of the highest rank and the clear pathway he set is one to be admired and followed.

John L. Kane Jr. is a senior United States District Judge of the United States District Court for the district of Colorado.

John L. Kane Jr. is a Senior United States District Judge of the United States District Court for the District of Colorado.

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