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Judging the Judges 

John Fitzgerald Molloy's autobiography is spread thin and occasionally hard to read, but it's valuable as a history

The Fraternity: Lawyers and Judges in Collusion resists categorizing. It's part autobiography, part firm history and cautionary tale, part law-history lecture, part excoriation of the Supreme Court and part argument for reform. What it's wholly not is ego-free. As author John Fitzgerald Molloy observes in his prologue, the story of his life is "inextricably the history of the court systems of this country."

Born in 1917 and raised in Yuma, Molloy joined the law firm of William G. Hall and Associates in 1945. He helped it develop into the largest firm in Southern Arizona by 1982, and then watched his handpicked best and brightest splinter it by 1992. A trial lawyer, Molloy also served as a judge--on the Superior Court as a juvenile court and trial bench judge, and on the state's first Court of Appeals.

While some of the book's legal descriptions make for a lay reader's slog, Molloy's organization and recursive writing put forward a clear argument. His contention is that the U.S. legal system "has evolved to where it serves the Fraternity (i.e., lawyers and judges) too well and our culture too poorly"; that law has become too profit-driven and exclusive; and that the Supreme Court has usurped the legislators' role of making laws. He introduces these issues early--while stating that he, personally, shares in the blame--and then weaves them through a chronological narrative of his professional life. He concludes with recommendations for reform.

It would be erroneous to characterize Molloy's musings (diatribes?) as a longing for the old days. But he raises up qualities of the law his father practiced early in the last century and that his grandfather, Judge Hall, practiced in mid-century, and contrasts current practice against them. Molloy's grandfather qualified to serve on a grand jury because he had proven character; Molloy's father passed the bar of the Territory of Arizona with limited formal education. Judge Hall disdained billing by the hour (folks like plumbers bill by the hour); and rules forbade lawyers from advertising while society itself stigmatized the practice of suing others in Molloy's father's time.

Molloy maintains that juries have been dumbed down so lawyers can manage them. He asserts that the rigor of law training makes law too exclusive--enriching the few. Additionally, "the fraternity"--lawyers and judges together--has so complicated the law that no one dares venture there without a lawyer. Molloy believes that greed is driving the profession; he deplores the explosion of litigation, and he would banish lawyers from juvenile court.

Mostly, however, Molloy believes that the Supreme Court--especially the Warren Court--has handicapped law enforcement and local courts and has undermined the balance of power by stealing lawmaking away from legislators. Discussing what he sees as the most damaging rulings (e.g., Miranda, plus Bruton and Gault, not to mention the 2000 presidential election decision), he accuses it of subverting the Constitution to its own ends.

One of his former colleagues said that Molloy taught that there must be a reason for every word a lawyer writes. It's not hard to discern that principle in the loaded diction he employs for the Supreme Court; he calls it, variously, "The Infallible Nine," the "All-Knowing Court," the "Bravest of All Courts" and the "Nine All-Seeing Ones."

As a work, The Fraternity struggles to hold together. It's more two books than one--Molloy's story, and Molloy's argument. The argument gets stretched pretty thin over the story, and the collusion piece is unconvincing. But the observations are valuable, the narrative intriguing and the writing impassioned. It's a piece of Tucson history, a challenge to legal professionals and heads-up to the rest of us.

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