A little more than 4 years into my time as a judge I’m happy to say that out of more than a dozen cases that were appealed from my court, the court of appeals affirmed all. The record supported my decisions. Conversely, getting those decisions “right” was at times heart wrenching, a feeling that every good judge shouldn’t hesitate to experience.
Judges cannot be arbitrary. Attorneys and litigants shouldn’t feel like they’re playing craps in Vegas every time they appear in a judge’s courtroom. A judge should hear the facts, apply the facts to the law applicable to each case, then make a decision based on this almost scientific approach. To do otherwise constitutes legislating from the bench, which is dangerous and unpredictable.
“The task of a judge is not to make the law – it is to apply the law.” ~ Supreme Court Justice Sonia Sotomayor
“Originalism is sort of subspecies of textualism. Textualism means you are governed by the text. That’s the only thing that is relevant to your decision, not whether the outcome is desirable, not whether legislative history says this or that. But the text of the statute.” ~ Supreme Court Justice Antonin Scalia
This may sound harsh, but my feelings shouldn’t interfere with this process. If the facts of a case line up with the elements of the law, I am bound to render the decision demanded by that process. It’s the only proper way to judge. Parties have an idea what to expect when a judge follows this philosophy.
Sometimes proper judging hurts my heart. Most of my cases so far involved termination of parental rights. Anyone who thinks this is without emotional consequences is clueless. I had a few sleepless nights during my time in CINC court. While I knew the families that stepped up to adopt the kids loved them and would take great care of them, I also knew there’d be trauma to go around, both with the biological parents who lost their parental rights and the children who would ask themselves for a very long time if there was something they did to drive away their parents.
The same thing happens in all areas of law: domestic, criminal, debt collection, and civil litigation. There will always be winners and losers, and sometimes these cases are close calls. Close calls take an emotional toll on judges, and we must not let that reality impact our decisions. The facts are the facts and the law is the law.
I suppressed evidence obtained through illegal searches. I overruled motions to suppress allegedly illegal searches. I found criminal defendants guilty. I found criminal defendants not guilty. I even found defendants not guilty when they violated the terms of their diversions when the stipulated facts were insufficient to establish guilt beyond a reasonable doubt. I approved lots of search warrants. A also denied a few warrants. The facts and the law compelled me to make each and every one of these decisions.
I also believe that as the judicial canons state, judges should engage in community outreach to positively impact the administration of justice, and write on important legal issues to accomplish the same objective. I’ve taken this to heart by speaking to churches and community organizations about the importance of community involvement in foster care support over the past few years, and will continue to do so even though I’ve been “promoted” to the civil division. I’ve also published at least one law review article a year and presented continuing legal education programs to provide useful information to attorneys. I firmly believe that judges should be involved in their community and the bar to enhance the administration of justice and I will continue to do so.
As the 2020 election draws near, you should know what kind of judge you are voting for. I appreciate your support.
God bless and stay safe,
Hon. Kevin M. Smith
Paid for by the Committee to re-elect Judge Kevin Mark Smith 