Words matter and have consequences. The words “Make America Great Again” on a baseball cap worn by Justice Bernd Zabel in his Hamilton, Ont. courtroom the morning after the presidential election have compounded through alignment with U.S. President Donald Trump.
“Just in celebration of a historic night in the United States. Unprecedented,” Zabel said. He then took off the baseball cap and placed it on his desk.
“You’ve lost your hat,” the deputy Crown attorney remarked later that day after court had adjourned.
“Brief appearance for the hat. Pissed off the rest of the judges because they all voted for Hillary [Clinton], so I was the only Trump supporter up there, but that’s OK,” Zabel replied.
On Nov. 15, 2016, his first opportunity to do so, Zabel delivered a public apology.
But the wearing of the MAGA baseball cap became the subject of 81 complaints. By the time the matter arrived before a hearing of the Ontario Judicial Council on Aug. 23, the Hamilton judge’s lapse in judgment had been “heard around the world.”
A judge needing his day in court
That a full hearing before the Ontario Judicial Council would go forward was overwhelming as a necessary adjunct of attempting to restore public confidence. Zabel seemed to want to explain. The reference to “vote” meant “predict.” Zabel was “gloating” over the fact he’d “predicted” that Trump would win, where his colleagues had “predicted” Hillary. The word “vote” was ludicrous in the context because, of course, judges don’t “vote” in American elections. Yet his “just a joke” for those who weren’t in on it, his bringing his colleagues into this by suggesting they were Hillary supporters, his ultimate acknowledgment that it was all “totally inappropriate” and that “what I did was wrong, a misguided attempt at humour . . . ” felt like minimizations. It felt like he hadn’t really “wrestled with the issues,” even as he testified.
Having “no hesitation” in finding the conduct a serious breach, the more difficult decision was appropriate sanction. In the result, the choice of sanction came short of a recommendation to remove from office. Zabel was reprimanded for his breach of the standards of judicial conduct in combination with a suspension without pay for 30 days.
A judge (almost) lost for the stupidity of a baseball cap
Stated at its simplest, the matter of Zabel is about a man who served as a judge for 27 years, presided over thousands of cases in an unblemished career and who made the biggest mistake of his life — “an ill-considered joke,” supposedly to bring “lightness” to his courtroom.
Stating it another way, it’s about a man who, having spent all his life believing that words and deeds matter, threw words and care to the wind, walked into his courtroom like Rhett Butler out of Gone With the Wind and said, “My dear, I don’t give a damn.”
Who is the community?
In his opening statement, Ricardo Federico, of counsel for Zabel, asked the panel to blend the communities before passing judgment. It is not the community of 81 complainants that is the only relevant community, he advocated. To allow that community to prevail will put “a fist on the scales of justice.” There are other communities that make up the public, including the community in Courtroom 208, the community that did not complain, the community of 62, which lent its specific support and whose words described a man of decency, compassion, an empathetic and thoughtful listener, a “dedicated judge,” “not polarized, misogynistic, biased or racist in any way whatsoever,” “everything Donald Trump is not.”
Justice can never become a game of numbers — not of 81 complainants, nor of 62 specific supporters. Yet our response to the wrong is also part of the moral equation, as is forgiveness or compassion for the judge whose thoughtless alignment showed a serious lack of judgment.
What it means to support someone like Donald Trump in the Canadian context
In the Canadian context . . . it is being seen to condone and support what he stood for and that is enough. Any judge who outwardly does that in his courtroom should be sanctioned in some fashion.
- —The presenter, Linda Rothstein
The case of Zabel before the Ontario Judicial council is ultimately about waste — that something so precious as an entire working life spent doing something that really does matter, that has consequence in the lives of others, could have been lost over something so stupid as the mindless act of wearing an idiotic ball cap. Lawyers and judges are privileged to be paid to think for a living. This was thoughtless.
While judges don’t live in “rabbit holes,” (the words of fellow Hamilton judge Marjoh Agro), Zabel did go down a rabbit hole when he wore the hat — layered under the protective gown of an artificial deference and respect that lawyers and judges enjoy every day. At times, this artifice provides a necessary comfort. But at other times, such as this time, the gowns of judicial office enabled this judge to lose sight, however momentary, of the public he served and, in that moment, we were all diminished. As Agro put it in her testimony: “He’s not the only one that’s paid a penalty.”
Former U.S. president Barack Obama tried to give warning during a speech last year in Charlotte, N.C. that no one really changes in the presidency; rather, the office “magnifies” who you already are. It is the alignment with Donald Trump that magnified the wrong — Trump who declared an “America First” and “Make America Great Again” culture that relies upon human divisiveness, not inclusiveness.
Whatever the sanction, the near miss, there can be no doubt about this: The Hamilton court, the Hamilton community it serves, those Canadians who have come to expect character, not caricature, have all somehow become the latest names on a long list of victims of the now president, Donald Trump.
Darlene Madott is a family law lawyer who has practised law for more than three decades and is an award-winning author of seven books. Her fiction has been widely anthologized, most recently short-listed for the Carter V. Cooper/Vanderbilt award (Exile editions). Website: www.darlenemadott.com.