Judging the Judges

In recent years, numerous complaints have been voiced about the performance of judges in the U.S.  Much of the criticism is warranted and signals a need for substantial improvement in the operation of our court system.

The entire country witnessed an example of this need during the criminal trial of O.J. Simpson. As pointed out in Vincent Bugliosi’s book Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, the behavior of Judge Lance Ito was a main reason for the gross miscarriage of justice in that case.

Bugliosi successfully prosecuted the Charles Manson case and has many years of experience as a trial attorney. He reports that throughout the Simpson trial, Ito displayed precious little common sense; treated the lawyers, and particularly the prosecutors, in a demeaning and overbearing manner; and “specialized in making patently erroneous rulings, one after another.”

According to Bugliosi, it is not uncommon for judges to behave that way. He relates: “It has been my experience and, I daresay, the experience of most veteran trial lawyers that the typical trial judge has little or no trial experience as a lawyer, or is pompous and dictatorial on the bench, or worst of all, is clearly partial to one side or the other in the lawsuit. Sometimes the judge displays all three infirmities.”

Bugliosi goes on to assert that there are many judges who have trial experience, know the law, are completely impartial, and have not let judgeship swell their heads. But he says they are decidedly in the minority.

Anne Strick’s book Injustice for All: How Our Legal System Betrays Us describes the same problems. She quotes Judge Samuel Rosenman as saying: “[I]n many – far too many – instances, the benches of our courts in the United States are occupied by mediocrities – men of small talent, undistinguished in performance, technically deficient and inept.”

Strick also quotes Lewis M. Isaacs Jr., who was a prominent New York housing attorney. He said a judge is all too often a person “whose ignorance, intolerance and impatience are such as to sicken anyone who stops to think about them . . . [the judiciary is overloaded with] bias, intolerance, cowardice, impatience, and sometimes graft.”

Strick further reports that James V. Bennett, who was director of the Federal Bureau of Prisons for 27 years, testified before a congressional committee: “That some judges are arbitrary and even sadistic . . . is notoriously a matter of record.”

In Harvard law professor Alan Dershowitz’s book Supreme Injustice, the problems are shown to reach all the way to the U.S. Supreme Court. He presents irrefutable proof that in the case of Bush v. Gore, five justices ignored the Constitution and a multitude of legal precedents, acted contrary to their previously stated principles, violated their oath of office, breached the code of judicial ethics, and then tried to conceal their wrongdoing.

All this was done to stop the counting of legal votes in Florida and hand the 2000 presidential election to their preferred candidate, George W. Bush. That conclusion is consistent with the views of 554 law professors, of various political beliefs and from 120 law schools across the country, who were so outraged by the lawlessness of the court’s decision that they published a full-page newspaper ad to protest it. They complained that the majority justices “were acting as political proponents for candidate Bush, not as judges,” and that “by stopping the recount in the middle, the five justices acted to suppress the facts.”

The justices who committed this dastardly fraud on the American electorate – Rehnquist, Scalia, Thomas, O’Connor, and Kennedy – deserve a prominent place in the annals of judicial infamy. Vincent Bugliosi, in his book The Betrayal of America, writes that “these five Justices are criminals in every true sense of the word, and in a fair and just world belong behind prison bars as much as any American white-collar criminal who ever lived.” And if judges are willing to behave in such a despicable manner when the entire country is watching, it is chilling to think what they might do in cases receiving little or no public attention.

Of course, it’s nothing new to have court decisions influenced by political and personal considerations. Supreme Court Chief Justice Charles Evans Hughes, who served in that capacity from 1930 to 1941 and was highly respected, said that “90% of judicial decisions are based on bias, prejudices and personal and political motivations, and the other 10% is based on the law.” What was different about the decision in Bush v. Gore was that the majority justices reduced the law-based 10% down to zero.

As for the lower courts, Dershowitz comments: “It is widely known that many state court judges and some lower court federal judges play favorites among litigants and lawyers. . . . [P]ersonal favors are quietly stored and exchanged. I have seen it with my own eyes. . . .” He warns that those judges will concoct plausible legal arguments to justify improper decisions and camouflage the real reasons for their actions.

Judge Richard Posner notes how easy it is for judges to create such bogus legal reasoning. He says he has been amazed by the “extraordinary plasticity of legal rhetoric, which enables a clever judge to find a plausible form of words to clothe virtually any decision, however barbarous.”

In a letter to the National Law Journal in 1995, longtime Cleveland attorney Crede Calhoun reported that judges are also able to get away with more blatant forms of misconduct. He wrote: “Judges can, with impunity, avoid the facts and the law through deliberate misrepresentation of both, the evasion of indisputable contentions of the losing party, the construction of straw men, etc., all toward the end of producing a result that suits their fancy.”

The victims of this bias and corruption are often innocent members of the public, who looked to the courts for justice but were betrayed by the politics, cronyism, axes to grind, incompetence, laziness, and heartlessness that exist all too often in the judiciary. Because courts deal with highly important matters concerning people’s lives and property, the harm inflicted on the victims can be enormous.

Famed trial attorney Gerry Spence recounts that when he was a young lawyer, the older members of the bar instructed him to always and indiscriminately “respect the robe.” He says this advice was wrong, because what he was really being asked to do was “respect their cronies, the men they put on the bench with their money and their influence. When they asked me to endow the robe with respect, without regard to the rogue who wore it, they asked me to respect their power over my client’s right to justice. When I give respect to the robe, I lose the right to rise up against the injustice imposed by a judge who wears it.”

Spence is right. There is a moral obligation to oppose wrongdoing and injustice, regardless of whether the outlaws are wearing black hats or black robes.

If professional associations such as the American Bar Association and the American Board of Trial Advocates are interested in reversing the public’s declining confidence in the legal system, they need to do more than prop up a mythical image of the judiciary and shield judges from criticism.

That strategy won’t work, because too many people know that a lot of the criticism is valid. For example, the January/February 2004 issue of the Ohio Lawyer magazine stated: “Eighty-three percent of Ohioans believe that campaign contributions affect how judges decide cases, and a disturbingly large percentage of judges feel the same.”

In 2006, a New York Times report on the Ohio Supreme Court supported those beliefs. It said that during a 12-year period, the justices ruled in favor of campaign contributors an average of 70% of the time. Of the 10 justices on the court during the period, 6 ruled in favor of their contributors more than 70% of the time. For one justice, who declined the newspaper’s requests for interviews, the figure was 91%.

After losing in the Ohio Supreme Court in a class-action lawsuit filed against a large corporation, one of the plaintiffs became angry after he learned that the company’s political-action committee had contributed to the campaigns of the justices who ruled against him. He said “they should be prosecuted for what I consider is taking a bribe.”

He had a right to be upset. An Ohio Supreme Court justice told the Times that contributors to judicial campaigns “mean to be buying a vote.” And the court’s chief justice explained to the newspaper that justices don’t have to recuse themselves from the cases of campaign contributors unless “sitting on the case is going to be perceived as just totally unfair.” Apparently, they can sit on cases in which the unfairness is less than total, or where the total unfairness is not perceived (presumably by the public).

More recently, Ohio Supreme Court Justice William O’Neill told the Columbus Dispatch, “There is no question that justice is for sale in Ohio today.”

Further, some Ohio appellate judges have been quick to label appeals in lawsuits against the politically powerful as “frivolous” and to sanction the appealing parties with fines of thousands of dollars.

Similar problems exist in other states, according to a 2002 survey of 2,428 judges by the group Justice at Stake, which advocates judicial reform. Almost half the judges said campaign contributions influence decisions.

A retired chief justice of the West Virginia Supreme Court of Appeals explained part of the problem: “It’s pretty hard in big-money races not to take care of your friends. It’s very hard not to dance with the one who brung you.”

Clearly, legal professional organizations, law schools, and others should be calling for improvements in the process of selecting judges. And they need to support more effective means of dealing with judges who perform their jobs incompetently, unethically, corruptly, or rudely.

Only by having judges of the highest moral character can the public feel confident of receiving justice from the courts.  As the great jurist Benjamin Cardozo said, “In the long run ‘there is no guarantee of justice . . . except the personality of the judge.'”