The undemocratic power of judges

Oct 17, 2014 The undemocratic power of judges

The judicial branch of government is a most undemocratic branch. Unelected judges — or else those elected for terms much longer than any other elected official — enter courtrooms,  often with commands for the audience to rise upon the judge’s entrance and departure, in black  robes, sitting on benches elevated above the audience, with courtroom security personnel ready to execute the judge’s every command, and with wide powers to convict and jail lawyers and non-lawyers for criminal contempt of court. Trial judges not only preside over trials, but they also decide whether to issue warrants to search and to arrest, decide whether criminal defendants will rot behind bars pending their trials, sentence convicted people, and make rulings on discovery and pretrial procedure that will have tremendous financial and other major impacts on civil cases. Appellate courts routinely leave trial judges with wide latitude to exercise their "sound discretion."

Juries, themselves flawed, do not resolve all abuses by trial judges. For one thing, juries are denied, sometimes in the first instance and other time in all instances, depending on the maximum available sentence for a misdemeanor; and juries are denied by law for many categories of non-criminal trials. For another thing, juries do not decide pretrial and trial procedure, and in plenty of jurisdictions they have no input as to sentencing in criminal cases. Among the biggest abominations of court systems is the long-entrenched justice court system that infests New York state, which includes plenty of non-lawyers with insufficient grasp of the law constantly violating even the most basic of Constitutional rights of criminal defendants.

This is the professional world I have chosen to inhabit, in court practically every day. Judges at once have the capacity to do great justice and great injustice. To do justice, they must give their full time and attention to each case. However, how is that possible when a judge walks into a courtroom with over forty or fifty jailable trials scheduled that day, unless most of the cases settle, get continued and get dismissed, unless the judge has full devotion, ability and resources to uphold his or her oath of office? How can a trial judge fairly adjudicate a multi-day trial when s/he has pending procedural matters to attend to with a waiting docket of civil and criminal cases? How can a private-practicing lawyer sitting as a Virginia District Court substitute judge make the time to be up to date on the applicable statutory and case law when s/he is only paid $100 for a half day and $200 for a full day on the bench?
It can be done, but how many judges do it?

How can we get the best judges to sit on the bench and to remain at their best? We are going to be beset by too many judges who do not belong on the bench until we shrink the criminal justice system to a more manageable size. We can do such shrinking by, for instance, legalizing marijuana, prostitution and gambling; heavily decriminalizing all other drugs; eliminating mandatory minimum criminal sentencing; eliminating per se guilty provisions in the DWI laws; and eliminating the death penalty. This is a realistic proposal, not a Swiftian modest proposal, and I repeat this proposal many times a year on this blog.

In the courthouse, I recently asked a Virginia legislator who is a name partner in a multi-lawyer law firm what we can do to not have so many substitute judges — versus full-time judges — too many of whom may not have the incentive to keep up on the applicable statutory law and caselaw. He responded that the solution will cost $800 million that the state does not have available. I do not know whether he was guessing at that dollar amount or whether the legislative number crunchers have actually reached that dollar figure, which likely considers dollar layouts over the course of years for salary, benefits, and pensions. A middle ground can at least be to increase the number of full-time judges, thus reducing the frequency with which substitute judges sit.

Some substitute judges are great. Some are horrendous. Then we have those falling somewhere in between. That is the same state of affairs for full-time judges. For a substitute judge to be great, pay of $100 to $200 daily will not be the incentive to be great, as opposed to his or her oath of office, sense of public duty, enjoyment of and pride in the work, and possibly sometimes also aspirations that substitute judging will be a stepping stone to being a full time judge, being a better lawyer, and/or getting more clients. Depending on the full-time judge, the pay may or may not be an incentive, seeing that plenty of judges earn substantially less than they would have earned had they remained in the private sector.

If judges and lawyers will only so agree, they can help make each other much better judges and lawyers if they will have frequent constructive, frank, and open discussions with each other outside of the courtroom, whether or not organized by existing bar associations, of course honoring such ethical rules as those governing ex parte communications. Otherwise, judges will be all the more susceptible to the dangers of groupthink and powerthink.

Judges will hopefully abuse and mis-use their power less often if they will not let their black robes, elevated seating, and contempt-order power interfere with their ability to faithfully serve litigants and execute their judicial oaths, if they will see themselves as no more elevated humans than those who enter their courtrooms. The judge who recently pondered aloud from the bench as to why those paying his salary would rise upon his courtroom entrance, earns respect rather than the opposite, for having his courtroom staff advise the audience to remain seated on his entrance. The judges in Prince William County, Virginia, General District Court who all follow the tradition of entering the motions hearing courtroom without robes and the Alexandria, Virginia, Circuit Court judges who in the courtroom schedule (or at least used to schedule) trials from off the bench and without robes, earn respect, rather than commanding through the fear that so many people have of judges.

With judges as with everyone else, respect is a two-way street. The judges who reduce and eliminate acting through fear-inducement and brute power will find lawyers and litigants who are more open and likely to work cooperatively with the judges to help them rule wisely in each case and to manage their overgrown courthouse caseloads.

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