Tuesday, August 30, 2016

Election Tuesday

Thank goodness we don't elect judges in federal court. I'm not saying it's a great system we have, but I think it beats elections. Asking the lawyers that appear before you for money... Ads that have nothing to do with judging... Yuck. 

Anyway, I was very proud of having the blog after lasts week's comments and posts about Hogan and Richey. People wrote such beautiful tributes and memories. Speaking of which, there is a memorial this Friday for Jay Hohan at the Biltmore at 11am. 


Anonymous said...

judges should not be elected.

Anonymous said...

I disagree. Decisions about who serves in our government should be made by the people not the elites.

Anonymous said...

The elites? oh please. The judiciary should be independent and impartial. Under our system, elections cost money and you have judges pandering, or appearing to pander, to those who finance their campaigns. Have a citizens board (non-elites, happy 9:56?) who recommend a number of qualified nominees and make a selection from that group. Have term limits or lifetime appointment, but don't make them run for election.

Anonymous said...

Judges should be elected and have a 2-term limit. Life tenure breeds judicial arrogance. Knowing that judging will be followed by a real job where everyone sits level with the next person is the best way to avoid black robe fever.

Anonymous said...

Term limits aren't the issue. The problem is with having judges elected, and even more problematic, having sitting judges run for reelection. Numerous studies have shown that judges who are running for reelection tend to make judicial decision that will aid them get reelected. For example, that means that during election years, trial judges are more likely to override jury recommendations for life and impose a death sentence. Judges need to make tough, even politically unpopular decisions. They should not have to weigh making the correct decision versus making the politically expedient decision.

The following link is to a story highlighting many of the problems with electing judges and citing the studies I mentioned.


Anonymous said...

10:35 - Don't know why you're so antagonistic to democracy. You don't think under a pure appointment system the elites decide who gets to be a judge?

Mike Beltran said...

1:08's idea is very interesting because all but the oldest judges would later litigate with the lawyers who previously appeared before them. On the other hand, you would end up with all of the problems of our two-term elected president. For example, lawyers who don't like a judge in the last year or two of his second term would engage in dilatory (or precipitous) tactics to judge shop between the judge and his successor, much like foreign leaders delay (or hasten) negotiations during a president's lame duck years. At the same time, you wouldn't avoid all of the problems with elected judges, except that they would be slightly mitigated during the second term. So perhaps the answer is to appoint judges (JNC model), with a two-term limit at any particular level, which would operate as an up or out model.

Anonymous said...

How about a mixed type of system; some JNC type of vetting first, then election from amongst qualifying candidates? and I don't mean just 5 years and you're qualified. and definitely 2 term limit

Anonymous said...

At least with elections we aren't stuck with appointed "judges" like Destry for life. Also we are not subject to the whims of the genius Marco Rubio. There are a number of federal judges who are terrible and couldn't get a majority of votes in their own home. I'll take my chances with democracy every time.

Anonymous said...

Judging by the above comments, the answer is to end the lawyer/judge hybrid profession. Go to law school to be a lawyer. Go to judge school to be a judge. (and go to prosecutor school to be a prosecutor). The different professions should never mix. Zealous advocacy is different than the than the cold neutrality of an impartial judge, which is different than win a conviction at all costs.

3 distinct professions. Justice for all.

Anonymous said...

No, 12:57, that is NOT the answer. Many former prosecutors and former defense attorneys make excellent judges. Many former prosecutors make excellent defense attorneys.

I don't think there is even an argument that both elections and appointments can result in both good and bad judges sitting on the bench.

My problem with elections is the reality that money pays a huge role in electing and re-electing individuals and that judges facing re-lection may be inclined to do what is politically expedient and popular rather than what is just.

There are other countries that already employ the system you propose and I will take our system of justice (even with elected judges) over those systems any day!

Anonymous said...

Re: Anonymous at 11:18 AM

The problem with the lawyer-judge hybrid is, inter alia, the Lawyer-Judge Bias in the American Legal System. Professor Benjamin H. Barton, author of "The Lawyer-Judge Bias in the American Legal System", writes that virtually all American judges are former lawyers, a shared background that results in the lawyer-judge bias. Barton argues that these lawyer-judges instinctively favor the legal profession in their decisions and that this bias has far-reaching and deleterious effects on American law.

What other countries already employ the system I propose? Can you identify the countries? I would appreciate that.

FYI, the United States ranks #19 globally in the 2015 Rule of Law Index by the World Justice Project. Denmark ranked #1. The United States ranked #20 globally in 2014, and raked lower globally in 2012-2013, which considered separate factors, including criminal justice #26, and fundamental rights #25.





The World Justice Project has its own bias, "It was founded by William H. Neukom in 2006 as a presidential initiative of the American Bar Association, and with the support of 21 partners." William C. Hubbard is the current President of the American Bar Association, and current Chairman of The World Justice Project.


For a lively discussion of The Lawyer-Judge Bias in the American Legal System, see this interview by Glenn Reynolds with Prof. Barton.

PJTV: Bias! The Case Against Lawyers and Judges (YouTube video)


"Is the law biased in favor of judges and lawyers? Does the legal system give the legal profession special privileges? Do lawyers have liberties that other do not? Find out as Benjamin H. Barton, author of "The Lawyer-Judge Bias in the American Legal System" joins Glenn to talk about his book."

Glenn Reynolds, Instapundit.com

Anonymous said...

Re: Anonymous at 11:18 AM continued

Benjamin Barton, University of Tennessee
Helen and Charles Lockett Distinguished Professor of Law
BA with Honors, 1991, Haverford College
JD, magna cum laude, 1996, University of Michigan Law School


Cambridge University Press
The Lawyer-Judge Bias in the American Legal System


"Virtually all American judges are former lawyers. This book argues that these lawyer-judges instinctively favor the legal profession in their decisions and that this bias has far-reaching and deleterious effects on American law. There are many reasons for this bias, some obvious and some subtle. Fundamentally, it occurs because – regardless of political affiliation, race, or gender – every American judge shares a single characteristic: a career as a lawyer. This shared background results in the lawyer-judge bias. The book begins with a theoretical explanation of why judges naturally favor the interests of the legal profession and follows with case law examples from diverse areas, including legal ethics, criminal procedure, constitutional law, torts, evidence, and the business of law. The book closes with a case study of the Enron fiasco, an argument that the lawyer-judge bias has contributed to the overweening complexity of American law, and suggests some possible solutions."

Review by Overlawyered

Review by Larry Ribstein

Review by Cato’s Dan Mitchell

Prof. Barton quoted the Hon. Dennis Jacobs in his book The Lawyer-Judge Bias in the American Legal System, on page 1, Chapter 1 "An Ambient Bias", from The Secret Life of Judges, 75 Fordham L. Rev. 2855 (2007)


"When I refer to the secret life of judges, I am speaking of an inner turn of mind that favors, empowers, and enables our profession and our brothers and sisters at the bar. It is secret, because it is unobserved and therefore unrestrained-by the judges themselves or by the legal community that so closely surrounds and nurtures us. It is an ambient bias." (paragraph 2, page 2856)

Judge Jacobs previously served as Chief Judge of the Second Circuit (2006-2013). The Secret Life of Judges won a Green Bag Award.

Anonymous said...

Re: Anonymous at 11:18 AM

Correction: William C. Hubbard is a past president of the ABA (2015 – 2016).


Unfortunately the Wikipedia page for Mr. Hubbard shows he is currently president.


Linda Klein is president of the ABA(2016 – 2017).