Arthur Gilbert, Presiding Justice of Division 6 of the California Courts of Appeal, Second District
by Regan Morris
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Arthur Gilbert is one of the most well known judges in California. A jazz pianist, blogger, and prolific writer, Gilbert laughs easily; but he takes his responsibility as a jurist very seriously.
As Presiding Justice of Division 6 of the California Courts of Appeal, Second District, Gilbert says judges have an obligation to carefully explain their decisions, slashing through legalese and writing in layman's terms. To that end, he has been teaching at the California Center for Judicial Education and Research at the Judges College in Berkeley, CA, on and off since 1978. Gilbert himself studied at the college in 1976.
"As a judge, you have tremendous power; and it's got to be used sparingly. I think you can be a judge and a human being at the same time by being compassionate, by not abusing your power, by treating the lawyers and litigants with respect," he said. "My goal is to write with clarity and precision. And it doesn't have to be heavy legalese to sound impressive. I think you can do the job by writing in English so people can understand what you're saying and not fudging, by making clear-cut decisions readable and intelligible."
Like many judges, Gilbert started in traffic court. Los Angeles has the largest traffic court in the world, and he enjoyed the challenge. When he first started as a judge in his late 30s, he noticed a disproportionate number of Hispanic people had warrants for their arrest for failing to appear in court. Gilbert created bilingual tickets in Spanish and English, which greatly reduced this number.
After contemplating a career as a jazz musician and abandoning an advanced degree in literature, Gilbert attended law school and started his legal career as a deputy city attorney for the City of Los Angeles in the criminal division. Two years later, he joined a small firm, specializing in commercial transactions and civil and criminal litigation. That firm eventually became Leonard & Gilbert.
"They were young lawyers. They were my age, and one was a little older. They were very aggressive and dynamic, and we just sort of hit it off," he said. "I was offered some jobs from some big firms, but that huge big-firm mentality didn't appeal to me."
Gilbert knew California governor Jerry Brown from their days at Berkeley, which helped when he put his name in the hat for a position on the court. States generally have strict review boards for judiciary positions, but ultimately, the governor decides who is appointed to the bench in California and most other states.
"Somebody asked William O. Douglas, the great Supreme Court Justice, 'What does it take to be a Supreme Court Justice?' And he said, 'Well, it sure helps to know a president,'" Gilbert said, adding that he knew he felt at home after his first day on the bench and that he never wanted to practice law again.
"The difference between being a judge and a lawyer is immense; it's a huge gulf. You may speak the same legal language, but the lawyer is at your mercy trying to present a point of view. So what a judge is doing is taking the points of view of the lawyers and trying to see through what the problem is really about and…make a reasoned decision that complies with the law," he said.
Judges who make decisions and then leave the bench without explaining their rulings infuriate Gilbert. In the court of appeals, Gilbert said his first draft of a written ruling is often just the beginning. He writes through the problem, explaining it to himself. Then he strives to clarify in his rewrites. A stickler for language, Gilbert uses his blog to attack misuses of language, recently blasting an attorney for using the word "parameter" incorrectly—but he's not cruel and doesn't name names.
Gilbert Submits contains a collection of essays Gilbert has written for the legal newspaper the Los Angeles Daily Journal "to a confused but devoted readership." On his blog, Gilbert explains his role as that of a "probing columnist on a fruitless quest to reveal the underbelly of society and the justice system."
The blog started as a result of people asking for copies of old stories he had written for the Daily Journal. A friend suggested he publish his own archive online.
With his chambers in Southern California's Ventura County, Gilbert says the court has an appealingly casual seaside atmosphere. For attorneys interested in moving to the bench, Gilbert says building a strong reputation is the best way. And attorneys should submit their names to judicial-review committees. Knowing the governor helps, but it won't get you far without the reputation to back it up. And new judges should be prepared to start at small, municipal courts and work their way up. Gilbert said he never felt working as a judge in traffic court was dull or a step down after trying big criminal cases.
"We did an awful lot of drunk driving cases. It may sound routine, and it does get routine after a while; but it does have moments," he said. "It's a huge court. This is a court that is many people's only contact with the judicial system. And small claims court, that's another one. That's really an important court because the impression people have of the judiciary, they get from those experiences. So I think it's really important for judges to be sensitive to that fact and to be very open to different milieus."
If court ever became routine, Gilbert said, he would strive not to have a bureaucratic attitude and never forget that these are real people with real problems. Whether a judge is conservative- or liberal-leaning is often blown out of proportion in the public and media, Gilbert says. People who slam "activist judges" often want the judges to be activists.
He cites the Terri Schiavo case as an example. The judiciary was accused of arrogance for refusing "to follow the law." The judge in that case was a deeply religious man and was criticized by his church for ordering Schiavo's feeding tube removed, Gilbert said. He rejects criticism that judges too often make activist rulings.
"We have a three-strikes law in California. It's one law that I'm not crazy about, and I don't think I've ever reversed one of those cases," he said. "I have an oath of office that I took, and I have to decide cases on the merit of the cases and the law. And whether I like the law or don't like the law isn't the point."
Does he ever feel sorry for people he sentences—particularly in the three-strikes cases, which some view as too harsh?
"I might feel sorry for an individual person in some cases, but the point is by ruling in accordance with the law, as you should, you are actually upholding the integrity of the judicial system and making it one that's fair to everyone," he said. "And that gives me a good feeling knowing that I'm doing that, even though I may have sympathy for an individual in a case."