When Kat was in preschool, she and another lawyer�s child used to play a game based upon criminal court. They occasionally fought over who was to be the judge because, like most three- and four-year-olds, they were power hungry. At the time, it seemed they had it right. If they were to play today, I�d have to explain to them that today the prosecutors have the power, especially after the latest �anti-terrorism� legislation. Nowadays, the judge is becoming nothing more than window-dressing.

Some of it started with good intentions and their unintended consequences. Some people were concerned about sentencing disparities. How do you eliminate disparities? You do it by specifying a range within every sentence must fall. But if these days had been the old days when one act was one clearly defined crime, it might have worked. In days in which theft of a car can be charged as theft of the steering wheel, theft of the engine, theft of the right rear tire, theft of the left rear tire, etc.,* it doesn�t work particularly well. As long as a prosecutor has such large and unfettered discretion over the number and type of charges, any control on sentencing shifts the power from the judge to the prosecutor.

Other parts of the transfer happened with less benign motives. If you don�t like judicial decisions, the temptation to tamper with their independence apparently becomes overwhelming. If you can limit their ability to decide items that they might decide contrary to your wishes, then you can keep them from making decisions you don�t like. You start by limiting the ability of federal judges to oversee state judicial decisions about the constitution by limiting the availability of the writ of habeas corpus as we did in the last anti-terrorism legislation in 1996 that, like the current legislation, appeared to have more to do with ordinary criminal law than anti-terrorism.

Whatever the reasons, it reminds me of all those times I was supposed to pretend the emperor had clothes. I hated it when, in the free-wheeling sixties, my fifth grade class was supposed to generate their own rules. I still remember Mr. Klein up at the board saying, �And what else? What else?� until some goody-good got tired enough of it to say something such as �No one should talk unless they raise their hand� or �No chewing gum because it is disrespectful.� One could talk of the power of the children forever but it was just talk.

The situation also brings to mind a variation on one of those times Outfoxed writes about. I still remember sitting at a meeting of lawyers in which I was the only woman and, worse, the spouse of one of the men at the table. (No, not worse because I was�and still am�his spouse but because there are some groups of people who are no more successful than a four year old at keeping track of the possibility that someone have two roles at the same time.) I made several suggestions that the head honcho pooh-pooh until a rather sweet guy (no, not Mr. Philately) sitting across from me convinced Mr. Honcho that it was the sweet guy�s idea from the start. If I hadn�t thought it was so funny, I would have felt invisible. I hate feeling invisible.

No, I no longer want to be a judge. The robe is lovely but when you start having to put stripes on its sleeves to suggest your power you�ve already lost much of that power. I don�t want to rubber-stamp just anything that law enforcement thinks up and pretend I�m preserving justice. I think I�ll stay who I am: the person who pricks the bubble.

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* No, I�m not making this possibility up. This example comes from a real case one of my colleagues encountered. She challenged the approach and lost the case.

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