Belling the Cat
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Bad Judg(e)ment: A Three-Part Series
Part One: Belling the Cat
“There was a judge in a certain town who neither feared God nor respected any human being.” Luke 18:2 stands as evidence that unprincipled and disrespectful judges are not a novelty in human experience. They were a problem in Biblical times and, human nature not having changed much in the last two millennia, they are a problem now, a problem we lawyers have to deal with all the time.
We who stand between the bar and the bench all know who they are: the abusive ones, the indecisive ones, the ones who come to the bench without having read the briefs, the ones who cut the day’s work short in honor of the cocktail hour or tee time, the ones who are so eager to be liked they waste everyone’s time with war stories in chambers, the ones who grow frightened or indignant when properly asked to make new law, the sexist dinosaurs, the inconsistent and mercurial ones, the moody ones, the ones who long ago gave up caring about justice and only take pride now in clearing their dockets, the ones who endlessly delay writing important opinions, the ones who hand so much of their jobs to their clerks there seems to be nothing left over. Most of these shortcomings — and a myriad like them — are not subject to any effective check under our current disciplinary system.
Locally, that discipline is put principally in the hands of the Judicial Disabilities Commission, an agency whose very name suggests its principal focus. The organic statute of the Judicial Disabilities Commission tells us – and the record confirms – that the Commission exists to look primarily at one category of the hundred and one things that a judge can do to render a courtroom dysfunctional. The Commission’s task is to address “disability which is or is likely to become permanent and which seriously interferes with the performance of the judge’s duties.” True, the Commission may also address “misconduct while in office, or of persistent failure to perform the duties of the office, or of conduct prejudicial to the proper administration of justice.” But clearly this refers to the most serious kinds of malfeasance. It leaves entirely outside the scope of discipline most of the things that the judges “who neither fear God nor respect any human being” are apt to do. (And even given its limited scope, the Judicial Disabilities Commission is notable for almost never removing judges publicly, although it is reliably rumored that some have been privately given the choice of stepping down.)
And most of the time, so-called alter ego programs, where a member of the bar close to the judge acts as anonymous filter for relaying complaints, don’t seem to work, although the off-the-record and informal nature of the process makes neither statistics nor certainty possible. First of all, complainants cannot really be anonymous. It is the rare grievance so un-fact-dependent that the lawyer involved can seriously hope not to be identified. And the hunch shared by many lawyers is that the good judges pay attention and the bad judges, the ones who need major overhauls in their approach, brush it off.
The bottom line is, for any judicial vice short of corruption or dementia, there is no serious regulation.
Publicity would help. As I have written here before, truth is powerful. Public indignation could accomplish a lot. But, except for those occasions where our clients individually run into one of the bad ones, they don’t know. No, when it comes to identifying the bad judges, the only group presently endowed with enough institutional memory to connect the dots is the bar.
But we lawyers are not and cannot be big on blowing the whistle. There are principled and pragmatic reasons. As a matter of principle, in most contexts, we lawyers are professionally required to treat our judges, good, bad, and horrible alike, with respect. They embody the rule of law, even when it’s but a poor impersonation. Only in the most extreme situations are we going to feel comfortable complaining publicly about them. And on the pragmatic front, insubordination may be dangerous to our professional health. Bad judges are often vengeful judges. Sometimes complaining publicly can get you sanctioned. There have been a string of cases nationwide over the past few years of lawyers disciplined for attacking the integrity of the judges before whom they appear.
We are in the position of the mice in the fable; they know that if someone puts a bell on the cat, every mouse will know when the cat is nearby, and more of them will make it back alive to their holes and families at night. The problem is, belling the cat is a suicide mission no mouse would be foolhardy enough to undertake.
These bad judges need to be belled. But it’s exceedingly tough for us lawyers to do it. But who, if not we, will bell the cat?
My own nominee for cat-beller would be the press, often, and for reasons just like this, called the fourth branch of government. Right now, however, the press is doing a lousy job alerting taxpayers to lapses of judicial quality. Seldom do news stories about courtroom matters comment explicitly on the judge’s professionalism or lack thereof.
To be fair, journalists usually start with the opposite problem from the one we lawyers encounter. Even today, where most media are owned by bottom-line obsessed conglomerates to whom dissemination of important information is merely an incidental concern, many journalists remain committed to their mission to inform the public without fear or favor. But they — even those of them who often write about legal matters — may not know who the bad ones are. Discerning even judicial rudeness may require some knowledge of the more sophisticated niceties. And any lawyer who has seen a case he or she is personally involved in covered by the press understands how problematical it can be to get accurate reporting. It sure helps if the reporter has legal training. And there are lawyer-journalists out there. And yet judicial quality problems seldom see print, and even less often see the small screen where most of the public news consumption happens.
Another undoubted impediment is the way media outlets, the employers of reporters, even the legally sophisticated ones, approach the coverage of facts. We lawyers may know full well that a judge’s possession of judicial temperament or lack thereof is an objective fact like the color of her eyes. But it is usually not as easy to quantify or measure. Unfortunately there is no recognized empirical test for judicial incompetence, arrogance, meanness, or laziness. You will not find Black Robe Fever in the DSM. And while journalists are not totally leery of reporting on unquantifiable facts, they tend to prefer at least facts like events which can be confirmed or disconfirmed by a fact-checker. Short of a Judicial Disabilities Commission hearing, however, there is seldom an objective event establishing the absence of judicial temperament to report upon. Reporters do not usually get to write on “soft” subject like this, being saved for the more “objective” material.
And unlike similar quality problems in other branches of government, the temperament and approach of individual judges is not often discussed on the op-ed pages, either. The trial bar isn’t talking, and, as I have said, really can’t talk publicly. Of course the world is full of disappointed litigants who might like to air harsh words for the judge who didn’t give them what they wanted (or delighted litigants to whom the judge is “a Daniel come to judgment”). But their objectivity is so suspect they seldom get handed the megaphone. The not-infrequent critiquing of appellate rulings by law professors and those concerned with social policy is an entirely separate enterprise. (Well, usually. One recent and wonderful exception was a dignified, and devastating, commentary in the Spring 2004 issue of Administrative Law Review, an article by Prof. Richard Pierce entitled “Judge Lamberth’s Reign of Terror at the Department of Interior.” Download it; it is not to be missed.) We are talking here about justice at the retail level, where judicial temperament probably counts the most. And the fact is, except under the most unusual circumstances, no one is writing about this subject, not the lawyers, not the parties, not the professoriat nor the punditry.
As a result, trial judges enjoy a practical impunity from public comment few other public officials can claim. It is impossible to imagine a mayor or a legislator or an agency head with respect to whom almost every potential critic is professionally muzzled. This is not healthy. There are big things and little things journalists can do to improve the situation.
One small thing which might pay big dividends is just a heightening of attention to this issue in the course of existing coverage. Journalists cover trials; let them finally begin to report how the judges preside over them as a part of the coverage. (And no, taking potshots once a decade at a the judge in a sensationalized trial as many reporters did at Lance Ito in O.J. Simpson’s trial does not count. Also, few points should be awarded for gotchas: for instance sexist comments that fall with a clang on the courtroom floor as in the Peacock case of a few years back. They may deserve scrutiny and rebuke, but they’re too easy. The bigger problems usually lie in the subtler details.) Even if reporters do not come out and evaluate the good and the bad as such, reporting on the incidents of judicial outrageousness would help, e.g. what the judge said that may not have been substantive but affected the tone of the trial. There was a nice instance of this in the a series in this paper in the last couple of years on bail review, where the different courtroom demeanors of two District Court judges were compared. We need more coverage like this.
But the larger issue cannot be ducked: judicial approach, demeanor and competence are proper subjects for journalism unto themselves. They should be covered even when the cases in which the journalists observe them at work are not covered in their own right. Journalists should be going to the courtrooms to check up on how our judges are doing their jobs. They should be asking around for scuttlebutt. They should be reading the rulings in the little cases no one cares about to ask questions like: Is a judge (or a whole court) summary judgment-happy? Do employers always win discrimination cases before her? Does the prosecution? Or is the judge so bent on serving as a tribune of the little people that a big economic interest cannot get a fair shake before him?
And I know a great source for this great ongoing story, now underreported for at least two millennia. As I said before, we lawyers all know who they are. If only the press will ask us. We’ll tell them. Maybe not for attribution, but we’ll tell them.
Copyright (c) Jack L. B. Gohn
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