Tuesday, August 12, 2008

The Politics of Judging

First, great posts by PD Dude. I slacked off a bit and he came roaring back. His DNA posts were awesome. In keeping with what I wanted to do with re-vitalizing this web, I will now do a short post about something, with the emphasis on short. I want to get SOMETHING down before other stuff in life takes me away. I think that blogs are awesome, but it takes effort to write them. What I want most are the good discussions that follow. But it simply doesn't happen with every, or even most, posts. That being said, I still want to talk about what I want to talk about. This time, it is the judiciary.

There is an article in the August California Bar Journal entitled "Protections Urged for Judges." The article is named totally deceptively, but the article does point to one truth in the America justice system: the politicization of judges. It is something that often gets decried and there is a LOT of hand-wringing over, but it is easily solved. My solution will come at the end - I promise you that any conservative and/or Republican and/or tough-on-crime person will hate it.

The article in the Journal makes it sound as if everyone is all of a sudden realizing that, WOW, judges have to run for office! And a LOT of money goes into those races! And more and more money is being spent! Others are shocked - I say, why has it taken so long? California had, prior to 1986, one the most liberal judiciaries in the country. Rose Bird was the first (and so far, only) woman appointed as the chief justice of the Cal. Supreme Court, and the first (and again, so far only) former public defender to hold this position. Her decisions were far-sighted, and the Court was in the forefront of providing more protections to criminal defendants, as well as more protections for civil plaintiffs. In other words, the Court was actively looking out for the little guy.

There was this famous case, written by Mosk (but in the Bird Court) called Royal Globe Insurance Company v. Superior Court (1979) 23 Cal.3d 880. Royal Globe effectively created a new tort in California whereby you could sue an insurance company for failing to negotiate in good faith. Hypothetical: You get hit in an auto accident. The other guy is at fault, and you are legitimately hurt. His insurance company refuses to deal fairly with you, believing that by dragging the matter out and making you go to court you will either tire out and go away, or that you somehow miss a timeline or something and get procedurally defaulted. Their liability is capped at the max of the insurance payout, so why should they negotiate with you? They're only on the hook for $50k (as an example), so why not make you fight for it and make you settle for less? If you go to trial and win, you don't get attorney's fees, so the cost of your attorney will come out of your settlement. The insurance companies really have no incentive to be "fair" or to consider settling. And if they fight everyone and get a reputation for doing so, then everyone will loathe suing them, and will be more likely to try to settle for less with them. You don't have a contract with the other guy's insurance, so they can do this.

Well, the Bird Court didn't like this situation, so they came up with the bad faith failure to negotiate tort, which was an outgrowth of an Insurance Code. All insurance companies HATED Royal Globe. Consumers loved it. This tort allowed the plaintiff to sue the insurance company for failure to negotiate in good faith, and, where appropriate, to get additional damages and attorneys fees from the insurer for failing to negotiate when liability was essentially clear. Now there was a penalty for insurers dragging cases out - they could lose a lot of money if they got caught using this obvious tactic.

The insurance companies wanted to get rid of a Cal. Supreme Court that was reducing their profits and making it hard to screw so many people. So they funded the attack on Rose Bird and three other Cal. Supreme justices in 1986, turning the most liberal court in the U.S. into one of the most conservative overnight. The weakness Bird and her colleagues had was the death penalty: she hated it and thwarted it at every turn. Voters were outraged. The insurance companies funded the effort to oust Bird, the first time Supreme Court judges EVER got thrown out of office in California en-masse.

The irony is that these same voters got outraged over the newly composed Cal. supreme (I refuse to capitalize it now) court's overturning of Royal Globe and other consumer protections. Remember Proposition 103 and the "voter revolt" over insurance rates? The Court largely gutted that initiative in a 100+ page opinion that few have ever had the stomach to read. Funny how so many "tough on crime" initiatives and propositions get passed with little comment, but an anti-insurance initiative? That gets gutted. The California supreme court is now very pro-business. Ditto for most appellate and superior court judges.

It shouldn't come as a surprise that judges are political in nature. One often need look only to political registration to see how a judge will rule. Most Republicans are pro-business, which means that unions, consumers, and plaintiffs are likely to lose in front of them. Most Democrats are pro-union, some are consumer-friendly, some aren't so tough-on-crime, and the like. I could go on all day, but the political makeup of a judge isn't too hard to gauge when you know something about the judge. And tough-on-crime is usually the theme for most judges, because voters do NOT like soft-on-crime judges. Judges are political by nature, and it is a fool who believes otherwise.

Back to the article: Pete Wilson, the granddaddy of politicization of criminal justice issues (he sired Prop. 21, the expansion of Three Strikes, and before that he got re-elected on the back of the original Three Strikes initiative, as well as the anti-affirmative action and anti-illegal-immigrant initiatives) wrings his hands and moans in the article about the fact that these poor judges have to answer questionnaires! From outside groups!! And if they don't answer them, well, people will say bad things about them!!! And if they do answer them, litigants will use those (presumably) honest answers to recuse those judges in later cases!!!! Petey wants an initiative to say that judges needn't answer such questionnaires. In other words, it is okay for a judge to have strongly held beliefs on hot-button issues (like, say, abortion, or government regulation of business, or separation of church and state, or whatever), and for that same judge to rule in YOUR case without ever mentioning that he/she is the WORST possible arbiter of YOUR client's fate - that is okay by Petey. But to allow questionnaires from various organizations, political and otherwise, to mail stuff to this judge when he/she is running for office, and then for the group to essentially lambaste said judge for refusing to answer those questions, well, that's wrong - it politicizes the judiciary. Not true, I say. The judges have already been politicized. They are there because they are appointed by someone in office (in out state, the governor) or they have defeated an opponent in a political process. They got there by soliciting campaign money from those interested in judicial decisions. Police PACs want to see judges who won't throw out evidence in criminal cases. Businesses hate lawsuits against businesses. Plaintiff's attorneys like lawsuits and like torts - they want friendly decisions on such issues. Some religious groups want to end abortions and to allow church and state to mix more. Some groups oppose these same issues. But at the heart of it all is the money, the lifeblood of politics, as well as how the issues and the candidates resonate with the public (tough on crime sells well, penny for penny, dollar for dollar, because NO ONE LIKE CRIME, not me, not anyone, except criminals. And criminals generally don't vote, don't have money, and, hey, even criminals aren't too fond of criminals.). Like it or hate it, this is the system as we have it.

Pete Wilson's fake fix is an obvious attempt to inoculate his breed of judges: conservative, Republican, pro-business, with a heavy dose of tough on crime, from having to answer those questionnaires that expose their biases. He'd rather have the illusion of fairness that is belied by what actually happens in the courtroom. He wants to call his judges fair, and everyone else's type of judge "reactionary," or "liberal," or "activist." The way he wants to do it is make it so that you don't get to hear the biases (whatever they are) of the judges until they pronounce their opinion. As a totally unfair and mean example, if a judge tends to like little children without clothes and thinks that having pictures of children without clothes is okay, and believes that any such laws against such conduct violates the First Amendment, that judge needn't answer any questionnaires on the subject. You'll find out about this AFTER the judge has been elected.

But the real problem, in my eyes, is the money required to get elected and re-elected, and the fear of the electorate that judges have. A judge faces immense pressure that the crime du-jour will somehow be stapled to his/her head if he rules the wrong way. For example, say that there is a bad crime committed that everyone hates, but that the police did some very bad things that people really should hate more (but they don't at least they don't say it). Should the judge throw out a confession because the defendant was beaten by the police in obtaining it? It's an easy issue, because we are supposed to hate the idea of cops beating and torturing suspects to get them to confess, a practice common in the US 3/4 of a century ago and more. But what judge would throw out this confession in this day and age? I would hope that all would, but some won't. They won't because they are terrified that the voters will boot him/her from office for standing up for "criminals." I wish it weren't so, but it is.

Do you want a fair judiciary? Careful what you ask for - a fair judiciary means one that will impartially adjudicate the law. One that will unflinchingly stand up for those rights that the Federal and State Constitutions provide. While the California Constitution is easily modified (notice the new attempt to disenfranchise gays by amending the California Constitution and how easily that goal is obtained - a majority vote. The right to marry is so important that it shouldn't be so easily dispensed with - such an action will make that right seem petty and trivial), this is not the case with the U.S. Constitution. And judges will be compelled to obey it, unafraid to make rulings that piss citizens off. That's what I mean by a fair judiciary.

Easy solution: No more judicial elections, all judges are appointed, and judges have lifetime tenure. The only reason to remove a judge is for bad conduct/malfeasance/misfeasance. The only way to remove a judge is by impeachment. Now, if you hate a judge, blame the governor. Be careful who you select as governor. Oh, and the governor will go to great pains to make sure that his/her appointees do what he/she wants. Of course, once a judge has lifetime tenure, that judge will be pretty hard for anyone, even the governor who appointed him/her, to control. The problem with this, of course, is that the race for governor in California now becomes huge. We don't have an "advise and consent" rule for judicial appointees where the legislature gets a say (perhaps we should?), so the governor can appoint whomever he/she wants. But I can see that the legislature would go out of its way to not create new judge ships, especially when the governor and the legislature are of the opposite party. So that means that courtrooms would be packed. Maybe. But isn't this what we have already? The legislature doesn't want to give Schwarzenegger the chance to appoint more Republican judges, so they have dragged their feet on court expansion.

The truth be told, our judges ARE political. Only a fool denies this. With lifetime tenure, even the most political judges will eventually have the freedom to rule based on their beliefs and their sense of what is right, which is pretty much the best you can hope for. I have never, ever been a fan of Justice Scalia and his conservative ideology. But the truth is that he has done more for criminal defense and protecting the rights of the accused than most other "moderate" judges over the years. And he has stood up for the Constitution enough times to piss off even his own "base." He wouldn't have done those things without lifetime tenure.

Dennis Wilkins
The Guest PD Blogger


John_David_Galt said...

I think you have it backwards. Judges *should* be subject to ouster by voters if they take too many unpopular positions.

But I find California's questionnaires (and as a result, the periodic reconfirmation elections for judges) utterly useless, so I'd get rid of them.

Instead, I'd like to see groups with a variety of viewpoints (tough or lenient on gangs, tough or lenient on drugs, tough or lenient on minor property crimes, etc.) publish ratings on each judge based on the cases he handled since appointment or last confirmation election.

The needed info *is* already on the public record (except a few types of cases such as family law, and those ought to be public with the names redacted). We just need somebody to volunteer.

Anonymous said...

Coming from a jurisdiction that has lifetime appointed judges (Canada), I am a big fan of the system. However, I should point out that it has its flaws, too, namely that with incompetent judges, you're stuck with them. They aren't bootable, since there isn't any bad conduct upon which to get rid of them. Granted, they are few and far between, but they're out there and they STAY out there until retirement.

If you are looking for a proposal - I'll give you one. Judges are selected by a multi-person panel (of judges, laiety, and lawyers of all stripes). They are appointed by the designated appointer. Their appointment is reviewed after 1 year on an objective basis which looks at all of their decisions and sees how many are upheld by a higher court (or would be) - the analysis would be done by lawyers and judges (no laiety here). Have some minimum standard (i.e. no more than 3 clear errors of law or some such) and if they pass, they stay, and if not, so long...

Any system is going to have flaws, but I don't see the advantage to elected judges (other than the one ability to get rid of the duds). Given the judiciary's role in being a "check" on the legislature and executive, they should have as much independence as possible, which is practically impossible in a cycle of elections.

PD Dude said...

Great post Dennis, I like the discussion, and the feedback by others.

My thought is that perhaps Judges should have to work as commissioners for 2 or 3 years first. In California, Commissioners are appointed by the Court, and they have to be stipulated to by both sides. I have to say, I've found very few really bad commissioners, because if you get tired of them, you just stop stipulating, and they go out of business pretty quickly. It keeps them very fair.

I wonder if there was some way to do this, and after 2 years, everyone could evaluate them to determine if they'd be good for the bench. Sure, someone could try to play nice for 2 years, but that's pretty hard. I'll have to check and see how Commissioners that later end up as Judges do as Judges, if they're the same on the bench no matter what.

If anyone has any insights there, let me know.

Anonymous said...

Being from Chicago, you really don't want me to post anything about the politics of Judging!LOL!

Lil Spicy