JUDGING CRIMES

How corrupt is government in America?  If you ask Americans, the answer is: Not so clean.   Transparency International's Corruption Perceptions Index is a sophisticated statistical melding of various surveys intended to measure public perception of corruption in governments around the world.  In the latest edition (click on the "media pack" link), the United States ties for 20th place with Chile and Belgium, just ahead of Spain, Barbados, Estonia and Malta -- the last of which has been the scene of a long-running, fairly spectacular judicial corruption scandal.  (See post 71.)  

We're behind all the Western European nations except Spain and Portugal, and they're nipping on our heels at # 23 and # 26, respectively.  Well, Greece is in 54th place, but that dismal score tends to confirm the geographical point that, while Greece is the source of Western European civilization, it's not really part of Western Europe. 

In their most recent report, which focuses on corruption among judges and their staff, TI tried to tease out perceptions of corruption in the judiciary as opposed to the government as a whole.  After all, we all know that cops and lawyers can be paid off.  "Can judges and court staff take comfort from the hypothesis that respondents often think of lawyers and police when asked about judicial corruption, and not the actual arbiters of justice?  According to this special edition of the Global Corruption Barometer, the answer is 'no.'"  [page 12]

When asked specifically about corruption among judges, Americans rank their judges just slightly more corrupt than those of ... Greece.  (See post 215.)  We're only three places ahead of Romania, a nation that is constantly in the news for its corrupt judiciary.  We're behind Kenya, Colombia, the Philippines, South Africa and Italy.  [page 13]

How is that possible?  Well, methodological flaws provide one obvious explanation, although I would have to think that the semi-science of polling is probably more developed in the United States than anywhere else in the world.  That is, I'd be more inclined to suspect distortions in surveys conducted in, say, Colombia, with its American-sponsored low-intensity civil war, than those conducted in such a thoroughly market-segmented population as ours.   If so, that means the international comparison might be off, but not the percentage of Americans who perceive their judiciary as corrupt.

Another explanation for public perception of judicial corruption seems at first comforting, and that is: Americans have much higher expectations of their judiciary.  For instance, only 2% of citizens of the United States and Canada report paying bribes to judges, which is twice as high as the number of bribes reported in Western Europe (including poor old Greece) but much lower than the numbers in every other geographical region.  [Page 11, table 1]  So when Americans describe their judiciary as corrupt, they're not necessarily talking about corruption in the crude -- and filmable -- sense of cash in an envelope.

TI says the four problems most commonly identified in country studies of judicial corruption are the following:

1.  Judicial appointments  Failure to appoint judges on merit can lead to the selection of pliant, corruptible judges
2.  Terms and conditions  Poor salaries and insecure working conditions, including unfair processes for promotion and transfer, as well as a lack of continuous training to judges, lead to judges and other court personnel being vulnerable to bribery
3.  Accountability and discipline  Unfair or ineffective processes for the discipline and removal of corrupt judges can often lead to the removal of independent judges for reasons of political expediency
4.  Transparency  Opaque court processes prevent the media and civil society from monitoring court activity and exposing judicial corruption.  [Executive summary page 4]

All four of these problems are abundantly present in the American judicial system, though not always in the sense intended by TI.  Many details are much different here than in most Third World or Newly-Independent countries.

As for number 1, TI devotes a special section to the role of campaign contributions in American judicial campaigns [pages 26-31], and no one can seriously doubt that many contributions are the products of lightly-disguised extortion.  Judicial elections encourage gangster judges, allowing those so inclined to use their judicial power to run protection rackets: "Nice business you got here.  You must be proud.  What a shame that you got tangled up in that bet-the-company litigation.  Incidentally, I'm holding a fund-raising event next weekend."

Unfortunately, the only alternative to judicial elections that anyone in America has figured out is back-room political deals, in which wannabes pay for their nominations by contributing large sums of money to prominent politicians or otherwise making themselves politically useful.  (See post 235.)  The late Judge Richard Arnold, for instance, who since his premature death seems to have apotheosized into a reincarnation of Learned Hand ("the greatest judge never to serve on the Supreme Court"), lost two congressional races before taking a water-carrying job with Arkansas Governor Dale Bumpers, who then went to the U.S. Senate, from which post he could boost his aide into a federal judgeship. 

It doesn't make Arnold any less distinguished a judge to acknowledge that he acquired the opportunity to distinguish himself only by first paying considerable political dues.  Nor does it denigrate him or any other federal judge to say that the way we pick our federal judges is nothing fancier or more edifying than Andy Jackson's spoils system.  (See post 85 and post 165.)

As for number 2, whether or not federal judges are underpaid in any realistic sense doesn't matter: they have a Chief Justice of the United States telling them they're so drastically underpaid it's a "constitutional crisis."  New York's judges have apparently been driven insane by their low pay - they're seriously talking about filing suit against the legislature.  It must be said, however, that some of the state's non-lawyer magistrates are paid peanuts.  (See post 172.) 

As for number 3, dealing with judicial discipline – Well, it can be arbitrary and political, even if the politics involved are more refined than a simple question of which party one belongs to.  (See post 286 and post 287.)  Judges at the top of the heap are immune from ethical rules, provided only that they avoid getting convicted for major felonies.  (See post 198.)  Judges control the system for professional discipline of lawyers and use that to their advantage, suspending or even disbarring lawyers who expose judicial bribe-taking.  (See post 12.) 

And then we get to number 4.  The American judicial system is thoroughly opaque.  Every lawyer knows that newspaper accounts of judicial proceedings are generally uninformative to the point of being misleading.  You can read a lengthy article without ever finding out what actually happened.  Partly that's because journalists are ignorant or biased, partly that's because lawyers won't speak candidly about their cases because their job is to spin, but mostly it's because judges want it that way. 

The ever-entertaining New Jersey Supreme Court came right out and said it: "In an ideal world a free press would seek to foster fair trial rights by not circulating inherently prejudicial publicity at least during a time of trial."    That is, in an ideal world, a free press would not exercise its freedom.  Citizens would have no right to know what their government was doing (or failing to do) on their behalf "at least during a time of trial" and maybe the rest of time, too.   After all, what goes on in the courtroom is so extremely important to society that society needs to be kept in the dark about it.  (Think Dick Cheney and you get the idea.  Almost every practice of the Bush Administration that liberal intellectuals describe as trampling on the Constitution has its precedent in the judicial branch.  See post 261.)

But the most pervasive source of corruption in the American judiciary escapes TI's generalizing list, for the simple reason that our judicial system is so much more developed than those of most developing countries.  Judicial dependence in the sense intended by TI -- political bosses telling judges how to rule -- is hardly unknown in America, but I don't think anyone could seriously believe it's nearly as pervasive here as it is in many other countries.

Our judiciary is very independent.  But that, by itself, is neither a good nor a bad thing.  It depends on: Independent from what?  The biggest source of judicial corruption in America is judges' independence from democracy and from the law itself.  When "the law" -- and, in particular, "the Constitution" -- means nothing more than what a judge or group of judges says it means, we have passed from judicial independence to judicial autonomy.  We are returned in time to 1775, to an America ruled by a monarchy resisting the very idea of popular sovereignty.

South Carolina has been having a public dust-up about its almost-unique system of selecting judges: the legislature picks them from a list assembled by an outside committee.  (Virginia is the only other state that does it that way.)  One legislator described the way the committee selects candidates for the list: "It's, 'Well, I went to law school with this person or this person's mother baby-sat me or we went to the same fraternity together.'"

Well, that's what "merit selection" means.

Picking judges by way of political connections doesn't necessarily produce bad judges, of course.  I was reminded of that when I read that Clarence Thomas recently gave a speech honoring the late Richard Sheppard Arnold, an Arkansas-based judge of the Eighth Circuit (whose brother still serves on that court).

Thomas's speech isn't posted on the Supreme Court website's repository of the justices' speeches - why isn't that a surprise? - but we have a description from the Springdale Morning News.  (At least I think the paper is published out of Springdale [=Tyson, with some Wal-Mart thrown in] - like so many online editions today, it has a logo instead of a masthead and seeks to downplay its geographical limitations.)

Supreme Court Justice Clarence Thomas remembered a late federal court judge from Arkansas on Friday as "perhaps the most outstanding judge in his time" for championing individual liberties and judicial restraint.

In a 35-minute speech to the University of Arkansas at Little Rock's William H. Bowen School of Law, Thomas praised Richard Sheppard Arnold's judicial style and sparingly offered his own opinion.

"He adhered to a well-defined philosophy of classical liberalism -- stressing individualism and skepticism of large government," said Thomas, the guest speaker for a lecture series bearing the Arnold family's name.

That actually sounds more like the way Thomas prefers to see himself, but still.  Arnold was an interesting guy, even if he did tend to favor bow ties.   Here's the brief biography, taken from public sources:

Arnolds have practiced law for a century in Texarkana (located, as the name is meant to convey, near the junction of Texas, Arkansas and Louisiana).  Richard Arnold's great-grandfather was Gilded Age Congressman John Levi Sheppard.  (Here's more.)  His grandfather was Morris Sheppard, United States Senator and champion of Prohibition, making him the (unintentional, one presumes) mentor of Al Capone.

Like all post-Civil War politicians in the South, the Sheppards were Democrats and Richard Arnold maintained that tradition, though his brother is a Republican and Reagan nominee.  And his cousin Connie Mack, III was a Republican Senator from Florida in the 1990s.  Cornelius McGillicuddy IV, the current Florida Congressman, whose official portrait looks like a SNL actor parodying the modern blown-dry pol, is a full-blooded GOPpy, too.

The significance of all this, of course, is that Richard Arnold had some serious baseball roots.  But it also means he was to the political manner born.  I'm not sure why the Arnolds of latter generations decided they were Arkansans rather than Texans, but then the border runs right through their hometown, of hardly greater significance than the border between any two LA suburbs.  And there are advantages to being big fish in the smaller of two available ponds.

Following in his lawyer father's footsteps, Richard prepped at Exeter, graduated from Yale and received his law degree from Harvard, producing the usual mixture of envy and nausea in the rest of us.  He finished law school at the top of his class and clerked for Justice William Brennan, then spent the next three years collecting his reward, practicing with a big Washington firm for what undoubtedly was a handsome salary.  Then he went home to Texarkana to launch his campaign for the United States House of Representatives and incidentally to work at the family law firm.

That's when fate stopped playing ball with Richard Arnold.  In 1966, at the age of 30, he narrowly lost the Democratic primary.  But six years later the victor, David Pryor, gave up his seat to run for the Senate.  So Richard Arnold tried a second time to grab the congressional seat that was his by birthright.  But he lost again, by a wider margin.

It was now 1972 and the kid with the silver spoon was advancing on middle age with nothing to show for his vaulting ambition but a small-town law practice.  He lowered his sights and took a water-carrying job as aide to Arkansas Governor Dale Bumpers. 

Now, as it happened, Bumpers' term in the governor's mansion exactly coincided with that of Georgia's Governor Jimmy Carter.  As fellow southern governors, both belonging to the socially moderate, politically liberal wing of the party, Bumpers and Carter had a lot in common. 

Bumpers knocked off bad-old-liberal William J. Fulbright in the Democratic primary for the U.S. Senate in 1974, leading to his automatic election in November (the South was still Solid for the Democrats in 1974).  Arnold followed him to Washington. 

Two years later, Carter was inaugurated President.  And just seventeen months after that, the federal district judge for Texarkana conveniently died.  Bumpers boosted his loyal sidekick as the ideal replacement, and his pal the President went along.  So the wannabe Congressman became instead District Judge Arnold.

What happened next was the type of lucky break enjoyed only by those white males who snagged their positions in the last days of de facto segregation: Arnold was kicked upstairs to make room for a minority candidate.  Carter was eager to appoint blacks to the federal bench in his native South.  But southern Senators, who cared more about doing favors for their friends and paying off political debts than about the racial makeup of the federal bench, were resistant, forcing the President into wholesale judge-bartering. 

When Congress created a new district judgeship for Arkansas, the state's Senators acquiesced in a plan that saw their favorite candidate, a political insider, named to the new seat while Judge Arnold was elevated to the Eighth Circuit so that a black lawyer could replace him on the district court bench.

That's how you get to be a federal appeals court judge.  Pay your dues to the party, perform useful services for powerful men, hang around long enough and get lucky.  Take advantage of your ethnicity, if you can.  And, you know, have some credentials.  (Though you'll notice in this timeline that Arnold never spent much time actually practicing law - perhaps 9 years, of which two were consumed by congressional races.  Extensive practical experience has never been considered necessary, or even particularly helpful, in a federal appellate judge.  See Scalia, Antonin; Thomas, Clarence; Ginsburg, Ruth; Breyer, Stephen.)

What happened next was truly amazing: one of Bumpers' successors in the governor's chair got himself elected President.  Arnold was a friend of Bill, of course - no politically-connected Arkansas Democrat could have failed to be, at least during the first heady year of Clinton's presidency.  And so when Harry Blackmun announced his retirement, Arnold seemed poised to keep sliding upwards.

No less an exalted mentor than recently-retired Justice Brennan kicked off a package of four articles published in the normally undelirious Minnesota Law Review, extolling the many excellences of Judge Arnold.  [volume 78, pages 1, 5, 25, 35]  It was the sort of over-the-top homage usually reserved for Supreme Court justices on the occasion of their recent death, unheard-of for a sitting appeals court judge. 

More than 100 of his fellow federal judges wrote letters to President Clinton endorsing Arnold for the Court, a number far too large to have been anything but organized.  Sitting members of the Supreme Court let reporters know they wanted Judge Arnold to join them.  (This is from a New Republic editorial and a Wall Street Journal article, both from May, 1994.)   It cannot be doubted that Brennan was busy behind the scenes, eager to see his life's work perpetuated by a protégé.  With his cousin boosting him from the Republican side of the aisle, Arnold's confirmation in the Senate seemed assured.

But the blatancy of the Arnold for Supreme Court campaign made it impossible for President Clinton to go along without giving the impression of being rolled.  Arnold wound up with the consolation prize of kind words from Stephen Breyer, who called him "the finest of judges" at a rose garden ceremony.  

As with his two campaigns for Congress, Richard Arnold had been presented with a can't-miss opportunity to match or even exceed his ancestors' achievements in public life.  And, once again, he missed.

Clinton's official excuse for passing over Arnold was his cancer, and maybe it was more than an excuse.  After all, if Arnold had been named to the Court, the current President would have had yet a third nominee.

But for all that Arnold had every trapping of the political hack, and then some - and for all that he was small-town royalty, which is generally not healthy for a person's psyche - for all that, he was considered a fine judge.  Indeed, some are ready to say he was a great judge, although not necessarily for the same reasons Clarence Thomas praised him.  Here's one generous obit, and here's another.  And here's Rick Garnett's recent kind words from PrawfsBlog.

I'm prepared to believe all the wonderful things said about Judge Arnold, up to a point.  (When the word "perfect" gets used, I get hives, don't ask me why...)  Which just goes to show that even a judicial selection system based entirely on the old fashioned Andy Jackson-style spoils system will occasionally produce outstanding judges.  What was the Arkansas expression Clinton liked to use?  Something about a blind hog?

It might seem hypocritical to be feeling sorry for someone pilloried on this blog, but it's judges' presumption in telling other people how to live their lives that makes them deserving targets for more attention - and a great deal more ridicule - than they normally receive.  Once they're off the bench, guarded sympathy may sometimes be in order. 

Even Nixon had his moments of pathos, but they didn't begin until he left the White House. 

Reynold Mason was the former NYC judge who declared the judiciary wasn't bound by the legislature's landlord-tenant laws requiring rulings within certain time limits.  His living-museum exhibit of the distinction between the rule of law and rule by judges didn't cause him any problems.  It was only rent-controlled irregularities in his personal life that brought him down.  (See post 107.)

Now his ex-wife is sharing with the New York Daily News excerpts from her memoir about the ex-judge.  I'm sorry, that's just piling on.  The guy's selling real estate in Georgia - that's punishment enough.  Time to leave him in peace.

UPDATE:  I take it back.  (From the Daily News: "A former Brooklyn judge [Mason] was found in default yesterday for stiffing his kids out of nearly $230,000 in child support, setting the stage for a judge to order his arrest.   ... [Mason's ex-wife] faces eviction from her home in a New York suburb, where she is raising two teens and a 9-year-old on the wages she makes at Wal-Mart.").  No more pangs of sympathy from this blogger!

As I was saying, for someone who's spent his whole career practicing law in New Mexico (state motto: "the Louisiana of the desert"), it's a bit hard to understand what the Daily News calls "the exploding 'judgeships for sale' scandal".  In all honesty, I don't think I had ever stopped to think that there was something criminal about political leaders selling judgeships to the highest bidder. 

In Brendan Gill's memoir Here at the New Yorker - if my memory can be trusted - he describes getting drunk with another staff writer.  He winds up spending the night on the colleague's couch.  In the morning the guy gets up and vomits loudly into the sink.  While Gill comments on it, the guy is genuinely surprised: "Doesn't everyone vomit first thing in the morning?"  That's kind of the attitude I had about selling judgeships.  Doesn't everybody?

The Village Voice has been all over the Brooklyn story, as indicated by this breathless intro:

The haunting whisper in the courthouse corridors of Brooklyn was heard for so many decades it became an axiom, as unchallenged as it was unproven.

It wasn't just that a case could be fixed. The darker secret was that the bench itself had been bought, that its polyester black robes were on a perpetual special-sale rack, that smarmy party bosses, ensconced at 16 Court Street across from the supreme court they ruled, demanded cash tribute to "make" a judge.

And now former Brooklyn political boss (that's too grand a title - bossling, perhaps) Clarence Norman is on trial for selling judgeships.  Well, not directly - the charge is that he "strong-armed" judges into hiring loyal party soldiers (i.e., allowing them to skim off campaign funds) as a condition of their nominations.  But, promises the Times, even juicier allegations are "in the air":

One came from a sitting judge who, law enforcement officials have said in recent days, told a Brooklyn grand jury that he believed that more than $40,000 was delivered to Mr. Norman by a supporter to secure his appointment to State Supreme Court in 2001.

The other came from the ex-wife of an ex-judge, who was quoted yesterday as saying that she saw her ex-husband hand a party official $5,000 to help clinch his spot on the ballot.

In New Mexico, it's simply accepted that a certain percentage of judgeships are doled out to people who have done their share for the person doing the doling-out.  Many judges get on the bench by sheer merit, others win with well-run campaigns, others just luck into it, but there's always rumors of the contributions given, or fund-raisers hosted, to seat certain somebodies (and not necessarily the worst judges, either).

Currently the rumor is that President-elect Bill Richardson, who's killing time before his inauguration by serving as our governor, already has plans to fill the next vacancy on our state Supreme Court with a certain person who long toiled in the darkest corners of the political jungle, where he bedded down with creepy-crawlies - and gave them unnameable diseases.

No matter how much money this person gives our President-elect, appointing him to the state Supreme Court would be like making a convicted pedophile the public face of a ministry that attends to the spiritual needs of the children of inmates  ... No, wait, we do that here, too. 

("'He was not around children,' attorney Dan Marlowe said in an interview after the [parole revocation] hearing. 'He was working at a ministry where children were present.'")

If I were an opposition-research aide for, say, Hillary or Obama, I'd have somebody in New Mexico looking for witnesses who might know something about Brooklyn-style judge-brokering going on down here.  I'll even provide a hint about how to find such a witness: go to downtown Albuquerque during lunch hour on a weekday and ask the first person you see wearing a dark suit.  If you need confirmation, talk to the second person you see in that get-up.

Me-Mo first directed my attention to the case of St. Louis Circuit (i.e., trial) Judge Robert H. Dierker, Jr., a city counselor who lost his race for the state House and settled for being a judge instead.  Dierker has published a book called The Tyranny of Tolerance: A Sitting Judge Breaks the Code of Silence to Expose the Liberal Judicial Assault. 

(Assault on what?  My guess is that the designer miscalculated the type size, hit the right edge before completing the title, and then was too lazy to start over.)

I think we ought to be happy that the friskier piglets in the litter are beginning to crawl out of their pokes.  (See post 7.)  Given that judges have assumed the duty of telling us how to live our lives, basic democracy requires them to run for office on an honest platform, and Dierker, at least, seems to be (rather belatedly) revealing to St. Louis voters the planks of the platform he ran on.

That judges have platforms can hardly be doubted.  Look at this chart documenting the frequency with which judges in a certain court dismiss DWI charges.  Over a period of three and a half years, some judges dismissed over 50% of all drunk-driving cases before them, while others on the same bench dismissed just 20%.   Given the huge volume of cases (17,884) and the relatively long time frame, and given that cases are assigned randomly (unless some behind-the-scenes hanky-panky is going on), it's self-evident that the difference between 50% and 20% dismissal rates is personal, not legal.

These particular judges have to run in one contested election and thereafter stand for retention.  Why shouldn't the people voting in those elections be told ahead of time what the judge intends to do once power is in his or her hands?  Then the people with eight prior arrests will know whom to support.

So in general I think it's a good thing for judicial candidates to tell the voters what they're likely to get for their votes.  And, in a more general sense, I think it's a good thing for judges to tell us how we should live our lives before they whack us for not following their rules.

But Dierker's book suggests he's not really carrying his weight on the St. Louis Circuit Court.  The evidence for that isn't the book itself - Hey, some people write blogs in the evenings and on weekends, and that's far more demanding than this kind of book.  No, the evidence of lollygagging is that Rush Limbaugh's show runs from 11-2 on St. Louis's KMOX.  The judge's writing strongly suggests he's in the habit of calling a recess for his elevenses, and then allowing the break to glide gracefully into a late lunch.  Take a look at this sentence from his book:

Just as we saw with the femifascists, illiberal liberals don't want equality; they want to make some people more equal than others.

(I know what he means about making some people more equal than others.  Why, just a couple years ago some irony-deficient Pepperdinefascist was calling the Supreme Court "first among equals"!)

Now, in that single sentence I've quoted, Dierker compares the "illiberal liberals" to the pigs in Orwell's Animal Farm ("all animals are equal, but some animals are more equal than others") which is to say he's calling them Stalinists.  And, for good measure, he also calls another group of his enemies fascists.  An argument could be made that the tone of this discussion is shading over into a gray area in which reasonable people might fairly disagree about whether it was approaching the less-than-temperate.

There once was a time, far back in the mists of long-ago, when the world wasn't filled with female lawyers.  We're talking, oh, I don't know, practically prehistory.   Like, you know, back when they were singing this kind of thing.  In that hideous year, the year before Judge Dierker started law school, women made up 3% of the legal profession, according to the ABA.  He thought he was pledging a fraternity.

By the time I went to law school, the world had moved on to Burning Down the House and Eartha Kitt's comeback, and the male-female ratio at Northwestern was about 2-1.  The law school prominently displayed the faces of all its writing instructors in its catalogue, even though the instructors were treated as second-class members of the faculty in every other way, for one simple reason: the second-class jobs went to females, and featuring their mug shots tended to disguise how few female professors the school had.  At that time, according to the ABA, 13% of the members of the profession lacked the Y chromosome.

Since then, the ABA tells us, the percentage has doubled.  That's an 8-fold increase just since Judge Dierker was taking his LSAT.  All those women are following in the footsteps of the people he calls "femifascists" - the term apparently being his way of indicating that, unlike Limbaugh, he's not necessarily accusing feminists of signing on to the Wannsee protocol.

Beneath the look-at-me rhetoric, there may even be some ideas in Dierker's book.  Certainly the judiciary's assertion of authority to order elected officials to raise taxes is wildly, almost comically - in a Keystone Kops slapstick sort of way - violative of the separation of powers, though my understanding of natural history causes me to part company with Dierker's contention that "[t]he Constitution died on April 18, 1990" (referring to this Missouri case).   See, the way I figure it, words written on paper can't experience terminal ischemia. 

But does Dierker really mean that we were better off when the Constitution was still "living"?  That's not exactly a conservative position, and almost certainly not what he means when he mourns its death.  Which tells us something about his sensitivity to language.  As Scott Lemieux points out, we're not exactly dealing with a Holmes or Cardozo here. 

What we're dealing with instead is:

• A sitting judge speaking out in a way that gets past the bromidic pap.  That's good.
• A bad writer.  That's not good.
• A writer who gets his ideas from talk radio.  That's trite.
• A judge who insults roughly two-thirds of the lawyers who appear in front of him, and a big percentage of the parties into the bargain.  That's bad.

All in all, the book will probably help Dierker move from the bench to a comfortable perch in a conservative think tank, from which he can draw his judicial pension in comfortable semi-celebrity.  Good for him.  But in the meantime, if I were a female, a Democrat, or a liberal, I would recuse him from every case in which I wasn't absolutely sure, based on experience, how he would rule.  (So would Ann Bartow.  Steve Benen at Washington Monthly points out the essential self-contradiction of the judge's disclaimers.  His belief system doesn't inform his exercise of discretion?  Then what does?)

There's one more thing.  We also have:

• A judge who's about to dump a big chunk of his caseload on his colleagues, who will have to pick up the slack when he's recused from hundreds of cases.  Ask them if they think that's good.

Incidentally, it's worth noting how uncomfortable Dierker's tantrummy anti-feminism makes people on the reasoned right who would otherwise be his allies.  But don't feel bad for him: there are those who decry the shrill tone of the rhetoric employed by liberals to criticize the judge.

A law school classmate briefly worked for one of those thousand-lawyer mills that are regularly featured in the trade press.  When I made some comment about the number of hours such places require their associates to bill, he said, "The thing is, after a while they start believing they really worked all those hours!"

Now, admittedly, most of the big law firms, even those who have slimmed down their letterheads to the currently fashionable two-names-without-a-comma, don't go quite so far as James O. Mill, the retired Boston police officer who moved to New Hampshire and started a lucrative sideline running an investigations business.  According to the Massachusetts Supreme Judicial Court,

During 1993, 1994, and 1995, the defendant spent every business day at the Middlesex Superior Court, either in the court room assigned to clerk-magistrate Joseph Marshall or in Marshall's office. Beginning in April, 1994, Marshall handled most of the appointments of counsel for indigent defendants and motions for investigation funds. When the designated bar advocate was not in the courtroom, Marshall would deviate from the master list and appoint one attorney from among a group of four who were typically in the courtroom. Those four attorneys moved for investigation funds in every one of their cases and always retained the services of Mills Investigations. Marshall "rubber-stamped" his allowance of these motions off the record and in his back office where the defendant usually spent three hours a day socializing with Marshall.

For fiscal year 1993, the defendant billed CPCS [Committee for Public Counsel Services] for approximately $107,000 for investigative services. For fiscal year 1994, the defendant billed CPCS for approximately $197,000, representing 5,483 hours of investigative services. On forty-four occasions, the defendant submitted bills with more than twenty-four hours of work attributed to a single day. For fiscal year 1995, the defendant billed CPCS for approximately $359,000, representing 10,057 hours of investigative services. The defendant submitted 211 bills in which he claimed to have worked well over twenty-four hours in a single day (with some days as long as seventy-two hours).

There are 8,760 hours in a year (8,784 in a leap year), so billing 10,057 was pretty impressive.  As I say, I think that would be relatively uncommon among the associates of even the biggest law firm. 

I was reminded of my classmate's comment about the awesome power of self-delusion when I read about a mini-scandal that may have contributed to Conrad Burns' political downfall.  Four days before the election the Billings Gazette ran an AP story that began:  "Republican Sen. Conrad Burns received a $2,000 campaign donation from an attorney one day before recommending him for a federal judgeship five years ago."

The lawyer in question, Sam Haddon - that's "your honor" to you - is a former officer with both the Border Patrol and the old Narcotics Bureau (the DEA, several bureaucratic reorganizations ago).  This made him a natural for a job that consists, to a soul-crushing extent, of ordering the imprisonment of immigrants and addicts - the two categories of offenders that account for 65% of federal prisoners.  But that's not why he's a federal judge today, and every day for the rest of his life. 

Burns' spokesman tried to spin the suspicious timing by changing the subject: "To somehow insinuate that Sam Haddon wasn't qualified to earn his appointment on the merits is absurd."  No doubt Haddon was fully qualified.  But then, even in a state as unpopulated as Montana, with its bar of just 3,000 in-state members, there are doubtless several hundred other lawyers as qualified as Haddon. 

What made Haddon stand out from the crowd - what made his resume shine among the dross crossing a Senator's desk (whatever dross is, exactly, other than a handy cliche) - was his generosity.  As the Gazette reported, Haddon and his wife "frequently donated to Republican candidates and causes, giving $4,000 to Burns' 2000 campaign and thousands of dollars over the years to GOP committees and lawmakers."

The timing of that last $2,000 contribution was unfortunate, and perhaps typical of a soon-to-be ex-Senator with the gift of the gaffe (who else would publicly tell firefighters they did a "'piss-poor job' of battling a fire near Billings"?).  But the pattern of gifts was hardly out of the ordinary.  You don't get to be a federal judge unless you've made yourself useful to your state's senior senator of the President's party, and shovelfuls of money are always useful.  Federal judgeships are the last pure strain of the ol' Andy Jackson spoils system.

When the Supreme Court, a couple years ago, gave the green light to extortion by state judges, Justice O'Connor wrote separately to condemn the entire practice of electing judges.  She concluded: "If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges."

The assumption behind those words is that there's an alternative to judges being conscious of what side their bread is buttered on.  My impression is that appointed judges in general, and federal judges in particular, believe in a fantasy called "merit selection."  In this fantasy, judges acquire power because they deserve it.  Not, for example, because they reliably donated large sums of cash to politicians of the party temporarily in power. 

Nor because they served as loyal soldiers of the state party for years before being on hand when President Reagan needed to redeem his campaign promise to appoint a woman to the Supreme Court.  I'm an admirer of Justice O'Connor.  She was far more grounded in reality than any of the current members of the Court.  Her opinions were consistently coherent - which you might think is damning by faint praise, until you try to read a Breyer or Souter opinion.  But the only influence merit had on her appointment to the Supreme Court was that it allowed her past the initial screening.

After a certain number of years of wielding virtually unlimited power, many federal judges seem to feel a need to justify to themselves why they were touched by the fairy godfather's wand.  The psychological process that makes them want to believe they were chosen on the basis of merit isn't difficult to understand.  Or, as my classmate would say, "The thing is, after a while they start believing they deserved it!"

It's a sultry day on the Gulf Coast and you're feeling like William Hurt in Body Heat.  The air conditioning is on the fritz and the old ceiling fan just moves the mugginess from one part of the office to the other.  The Venetian blinds throw their atmospheric shadows across the office, helping to disguise the sweat patches under the arms of your white linen suit.

Then a new client walks in, and when she does the background music switches to a sultry tenor saxophone.  She sits in the chair across from you, tugging at her skirt as she crosses her legs.  In a husky voice, she tells you she's a nurse, providing full-time care to a local millionaire.  The millionaire is dying, and wants to write a new will, leaving his entire estate to her.  But he's so ill, he can't come to the office himself.  So he sent her instead.

All she wants from you is to write an itty-bitty will.  Giving everything to her.  Without ever talking to the millionaire himself.  Pretty please?

The ethical dilemma inherent in the situation is hard to ignore, as I'm sure you agree.  So you bite off the tip of a Cuban cigar, cast a sideways glance from beneath the brim of your Panama, and say which of the following?

a)  "Thirty dollars a day, plus expenses.  The world-weary wisecracks are free."

b)  "Are you kidding?  I could lose my license for that.  In fact, I'd deserve to lose my license if I did something like that."

c) "If we manage to pull this one off, sugar, I get half the estate." 

If you answered c, you could be qualified to serve as an Alabama judge.  Here's what the Mobile Press-Register is reporting, based on word from the Alabama State Bar:

In April 2003, Cheryl Weaver visited [Stuart] DuBose at his law office asking him to prepare and draft a will for Joseph J. Sullivan. Weaver, Sullivan's caretaker, informed DuBose the man was dying and wanted to leave his entire estate to her. She also asked him to name himself as the attorney for the estate of the will.

DuBose did not meet or speak with Sullivan about the will, but he should have.

DuBose gave the will to the woman to have it signed, witnessed and notarized and prepared a certificate of competency to be signed by the man's doctor.

Sullivan died later that month. DuBose was employed as Weaver's attorney as well as the attorney of the estate, creating a potential conflict of interest.

Apparently, the will stood up in court.  At least, the Thomasville Times reports that "[t]he judge in the matter ruled that a $1.2 million legal fee, about 40 percent of the estate value of $2.5 million was 'reasonable and necessary' and allowed DuBose to continue as the estate executor."  (Here's more.)

Well, I guess 48% can be called "about 40 percent", so I won't say anything about the reporter's math skills.  Besides, we're just getting to the good part.  DuBose, having made his fortune in private practice, decided to cap his career with service on the bench.  The Democratic primary for circuit judge was hard-fought.  DuBose's opponent ran an ad with excerpts from a deposition DuBose gave in his personal injury lawsuit against La-Z-Boy. 

Now, it may be that overstuffed recliners don't seem like dangerous instrumentalities to you, but that's only because you've never gotten one mad.  Here's what DuBose said under oath, according to his opponent:

"I've lost my capacity to earn a living practicing law" and "I don't want people around here knowing that I'm taking medicine for depression and for mental deficiencies or incapacities or limitations or infirmities or disabilities or whatever you want to call them like I'm doing."

Ah, but DuBose had an effective response to the disgraceful, mudslinging campaign based on his sworn testimony.  He ran an ad pointing out that his opponent "was a 39-year-old man who had never been married."   That little nudge, nudge clarified the issue.  The people of southern Alabama spoke.  Since there's no Republican in the race, that means DuBose is guaranteed to win next Tuesday.

Still, three years after the fact, the Alabama State Bar's disciplinary committee thought maybe something should be done about this will business.  So it proposed a 45-day suspension of DuBose's license, to begin the day after the election and end before his term began.  As the Times explained, "If he was not licensed on either of the above dates, he could not become judge."

The Alabama Supreme Court, that one-time perch for Zelda Fitzgerald's daddy, rejected the sweetheart deal, sending the case back to the State Bar with instructions to take the case a little more seriously.   (Unfortunately, that court has taken the don't-worry-your-pretty-little-heads judicial ethos of secrecy so far that it won't allow you to read its opinions unless you pony up a fat fee, so I can't link to the opinion.)

Meanwhile, DuBose, helped by his Mom the County Commissioner, has been helping out with the planned renovation of the courthouse.  His chief concern?  Making sure his office is bigger than that of the other judge in the district. 

Sunday's New York Times looked at campaign contributions to Ohio's Supreme Court justices.  No surprise, the votes follow the money, and the sleaziest judge on the bench is Terrence O'Donnell, who in his first three years on the bench voted for his contributors 91 percent of the time.  Two things tell you all you need to know about Justice O'Donnell.  First:

In 2000, business groups mounted a multimillion-dollar campaign to unseat Justice Alice Robie Resnick, a Democrat who wrote [a decision business groups didn't like] and joined [a] second. One advertisement showed a female judge switching her vote after someone dropped a bag of money on her desk.

Her opponent was Judge O’Donnell. He refused to denounce the attack advertisements, which seemed to backfire with voters.

And the other thing: in the wake of massive public rejection, O'Donnell was appointed to the supreme court by Governor Bob Taft, the living embodiment of Marx's dictum that history repeats itself as a farce.  Ohioans had good luck with their first two major Tafts (there are several thousand minor Taft politicians crawling around the state, too), but they pushed their luck a generation too far.   Anyone appointed by the current proof of genetic regression to the mean should be presumed mediocre until proven otherwise.

O'Donnell defended himself in a written statement: "Any effort to link judicial campaign contributions received by a judicial campaign committee for major media advertising to case outcomes is misleading and erodes public confidence in the judiciary."

As for the contention that it erodes public confidence in the judiciary -  Well, duh.  But as for the idea that it might be misleading: How?  Truthful reporting about a state supreme court is misleading in exactly the same way in which truthful evidence can be "misused" by a jury.  (See post 115.)  Judges deplore the tendency of non-lawyers to reach their own conclusions.

The Times's reporters also dug up a hilarious illustration of the way money addles judicial brains, producing a studied absurdity that would be difficult even for Fielding to parody:

 Unlike campaign contributions, direct gifts to judges, even relatively small ones, almost always require disqualification.

In 2002, for instance, the Ohio Supreme Court reprimanded a lower-court judge for accepting football tickets from Stuart Banks, a lawyer who had appeared before the judge. Yet three of the justices who issued the reprimand had accepted at least $1,000 each in contributions from Mr. Banks in the previous 10 years. Those same justices also sat on several cases in which Mr. Banks appeared before them.

Contrary to the bitter comments of a plaintiff out-shouted by money in Columbus, I don't think most campaign contributions to judges are bribes, or even have the effect of bribes.  I think the effect is both more subtle and more significant.  The Times piece gets close with this passage:

Precisely what contributors want or get for their money is unclear. Some contributors say they have no agenda beyond ensuring that able and independent judges are elected. Others surely hope to influence the justices’ votes in particular cases.

The middle ground, advanced by groups representing business, labor and plaintiffs’ lawyers, is to support justices who hold views similar to their own. “Various interests see voting patterns,” Chief Justice Moyer said. The alignment between contributions and votes, he said, is a matter of shared judicial philosophy.

If that is right, contributors are not trying to buy votes in particular cases. But they are trying to buy seats on the court.

What the reporters are almost but not quite saying is that big contributors know how the candidates will decide cases well before those cases actually reach the court.  Contributors don't shell out the bongo bucks unless they know what they're getting.  (And it ain't philosophy, bub.)

Ordinary voters, however, aren't privy to that knowledge.  It's considered unethical in the extreme for a judge to inform voters what they might expect from the judge's election.   Judges pride themselves on being pigs in a poke.  (See post 7.)  Their highest ethical standard is to ensure that only those with money to exchange for the information will know in advance how they plan to vote, once they encase themselves in the magical black robe.

One of my colleagues clerked for a justice of the state Supreme Court who followed a simple rule when deciding whether to grant review of a decision of the intermediate appellate court: if the Court of Appeals' opinion was more than 10 pages long, it needed to be reviewed, because that length indicated the judges were up to something.

It sounds silly at first.  But as a rule of thumb it's pretty reliable, because there are few legal problems that can't be resolved within 10 typewritten pages - if, that is, the court is applying existing law.  You don't have to justify your adherence to precedent.  Greater length generally means that the judge isn't applying pre-existing law, but is doing something he or she feels compelled to explain.

Another useful rule of thumb is that judges reserve their "eloquence" for opinions that need a little bolstering.  No judge uses fancy language to follow existing law.  So you don't really need to wade through the 82 pages of the Second Circuit's recent decision concerning New York's method of selecting judges to get the bottom line.  It's enough to read the first sentence:

This case requires us to peer inside New York State's political clubhouses and determine whether party leaders have arrogated to themselves a choice that belongs to the people.

Gee, wonder which way the case comes out?  That attempt at eloquence is the responsibility of Judge Chester Straub, a one-time New York State Assemblyman and State Senator.  Straub knows quite a bit more about the way judges pull out their patronage plums than most people.  This is from his official biography:

 Judge Straub was Chair of Gov. Mario Cuomo’s New York Statewide Judicial Screening Committee from 1988 until 1994 and of the First Department Screening Committee from 1983 until 1994. He was a member of Senator Daniel Patrick Moynihan’s Judicial Selection Committee from 1976 until 1998.

And that, boys and girls, is how you get to be a federal judge: you provide service to the party and make yourself useful to powerful politicians.  There's something indescribably aromatic about federal judges condemning the ghosts of Tammany's tigers for trying to replicate the federal system in miniature.

So from a judicial selection system heavily weighed toward the federal style of backroom deals, New York will presumably move to a system in which doing favors / paying one's dues / serving as a bagman will be more evenly balanced with big money media campaigns. 

The sense that there's something seriously wrong with New York's judicial selection process is not a new feeling.  Richard J. Tofel's Vanishing Point: The Disappearance of Judge Crater, and the New York He Left Behind doesn't provide much information about the famously retiring judge that wasn't already conveyed in Morris Markey's October 11, 1930 New Yorker article. 

But Tofel's entertaining book does provide a detailed glimpse of the sort of bargaining that promoted Joseph Crater to a seat on a Manhattan trial court.  I don't think "corrupt" is the right word at all.  "Pragmatic" gets a little closer to the key point, which is that there are many reasons other than legal acumen for turning a lawyer into a judge.  People got appointed to the bench because their appointments made sense, once you understand the point was to minimize the number of powerful men made unhappy by the choice.  Somehow I suspect that Judge Straub's stab at top-down reform won't make much difference in the long run.

Crater got appointed to the bench because he had spent many years being useful to Robert Wagner, Sr., and took care to avoid making himself obnoxious either to reform Governor Franklin Roosevelt or the gangsterish Tammany bosses, which allowed him to succeed as a compromise candidate.   Here's an American Heritage capsule summary of his famously thorough disappearance. 

(My own guess is that Crater, an appellate specialist during his years in private practice, discovered too late that life on a trial bench was unpleasantly fast-paced and stressful.  Having cashed in the political chips he had spent so many years amassing, he felt unable to free himself from a job he had asked for but experienced as a burden.   And the prospect of campaigning to keep a job that had become the focus of his clinical depression was just too painful to bear.  His wife's strange behavior following the disappearance makes sense if she was simultaneously dealing with the shock and trying to follow the instructions her husband left in a note explaining how to avoid the suicide exclusion in his life insurance policy.)

Long Island's John Gleeson, a mere whippersnapper among federal judges (check out his high school graduation photo, taken last year), caused a stir when he declared New York's system of selecting trial court judges unconstitutional.  His opinion certainly makes a good case that the system is outrageously undemocratic.  Here's an overview of the old system from the Village Voice's Tom Robbins. 

By coincidence I recently heard an entirely unfounded and preposterous second-hand rumor that, in New York, a seat as a trial judge (New Yorkers insist on calling their trial judges supreme court justices) can be purchased for $25,000.  The Daily News reported last year that the price was actually twice that.  An outrageously unsubstantiated and irresponsible rumor from a less populous state out west says that a mere $5,000 can get you appointed to a judicial vacancy in that far-off place, where there are undoubtedly no good Chinese restaurants.  The point is, if you can afford to make it to the bench in New York, you can afford to make it anywhere.

But although Gleeson's opinion and the endlessly-unfolding Brooklyn judicial scandal make a good argument that New York's existing system is rotten, it's harder to suggest alternatives.  In America there are only two ways to name judges: elections and patronage.

The first problem with elections is that judicial candidates have customarily adhered to the view that it would be unethical to tell voters what they'd actually do if possessed of the powers of the office they sought.   Deceiving the public by concealing one's intentions is the only ethical thing for a judicial candidate to do.   (See post 7.)   Lawyers can't supply the missing information because judges will retaliate against them (or, rather, against their clients) if they do.

A second problem is that elections, in our modern media age, are financed by bribes.   Last year the Eighth Circuit ruled that neither bar associations (traditional overseers of attorney ethics) nor the people of a state have any authority to prohibit state judges from shaking down litigants and lawyers.

So judicial elections are characterized by the institutionalized corruption necessary to influence voters' votes, coupled with a principled insistence that those votes remain as ignorant as possible.

The alternative to elections is the spoils system.  Forty-five years ago Ari Hoogenboom wrote a great book called Outlawing the Spoils: A History of the Civil Service Reform Movement, 1865-1883.  Somehow - probably thanks to the black-robe mystique - our system of selecting federal judges escaped the goo-goos'  attention.  We still pick our federal judges the way Andy Jackson picked the entire federal bureaucracy. 

Sometimes it happens that  a judge dies, resigns, retires or is removed in the middle of his or her term.  There's really no practical alternative to political appointment in that situation, and it's pretty silly to imagine any system of political appointments could ever be anything but political.

A number of states have instituted what they call "merit selection."  The phrase means that patronage is doled out by an unelected committee rather than an elected governor, and that brings us back to Brooklyn.  A year before issuing his thunderbolt, Judge Gleeson presided over the prosecution of Edward Reich, at one time the head of a judicial screening committee.  Reich went down for the kickbacks he extorted as a court-appointed referee.  But it was pretty sweet while it lasted: he named the judges to the bench, and the judges named him referee, and he took his cut of the money crossing his desk.  That's merit selection in action.

The wonder isn't that both systems sometimes produce clunkers.  It's that sometimes they don't.