Monday, April 23, 2018

Should judges be appointed or elected?

After reading the Justice Building Blog about Broward Judge Merrillee Ehrlich, I started thinking about this question again. I think the appointment process leads to more qualified judges. But elections, at least in theory, hold judges accountable for bad behavior. Perhaps judges should be appointed but not for life. What about having a committee that evaluates judges every 5 years to decide whether they get re-upped or not?

From Rumpole:

2:37: Yells at defendant who responds to question not to talk.
3:04: Yells at lawyer to keep quiet defendant

3:53: Yells at defendant- "I'm not here to talk to you about breathing treatment."

Reflect on that for a moment. This is a misdemeanor case. The defendant is obviously not well. She's in a wheel chair. We learned later that she had chronic obstructive pulmonary disease and in fact died within a few days of being released. The defendant indicates that she needs treatment to breathe. Not for pain. But to perform the basic function all humans need to perform to live. And the response of a member of the Broward Judiciary was that she didn't want to talk about it. Yes, this is the Broward Judiciary on full display for the world to see. They abuse defendants and lawyers all the time. However most of them have enough self control not to do it on video in this fashion.

4:10: "I’m not going to spend all day with her interrupting me."
4:50: Judge yells again
5:55 : "You’ve already said too much."
6:10 Judge Throws a fit and waves arms: "Don’t even say yes..."

6:35: And here's what a kind and decent judge says to a handicapped person in a wheel chair that they've just ordered to go to pre-trial services: "Arrange for someone to carry you if you can’t get there."


Anonymous said...

Appointment gets better judges. Perhaps appointment for a 10 year term (or something like that) with no re-appointment; either elevation or the boot.

I had a SDFla District Judge once grant a preliminary injunction (not a TRO) without a hearing, and after the the defendant had entered an appearance. He was old and confused and wouldn't listen.

We'd had a hearing on a motion to lift default and for extension of time nunc pro tunc. At the hearing on extension of time, and without an injunction motion being filed, the judge asked if a motion for injunction had been filed because "that's what usually happens in these cases." No motion for injunction had been filed. Default was lifted and the Answer was deemed filed. The next day, predictably, the plaintiff filed a motion for a preliminary injunction. We responded in opposition. The judge called a hearing. When we got there ready to defend against the pending motion, the judge said that we'd already had a hearing on the injunction issue and that our defense wasn't going to be heard.

This elderly judge was so full of pride that he wouldn't let me hand him a copy of the docket (which I had printed in my binder) to show him that no such hearing had been held, or to talk him through the procedural history of the matter. He called us in just to tell us that, since an injunction had issued, that this case would proceed quickly to trial, and to ask how and by when we intended to comply with the injunction. And he wouldn't hear anything else.

In theory, we could have appealed. But this client didn't have a ton of money and decided to settle rather than fight the plaintiff AND the elderly judge at the same time.

I often wonder what in the world his clerk was doing? Was the clerk too scared to speak up, too busy to care, or just checked out in general?

When I walked out, opposing counsel had the decency to apologize. But they weren't about to give back that gift either.

This is a problem that exists because of lifetime appointment. A man who was appointed by the president, confirmed by the senate, could not be removed except by impeachment by the House and trial by the Senate, let power go to his head and let age dull his wits. That combination does not serve justice.

Anonymous said...

That would be the equivalent of a life appointement except for those who are too corrupt to maintain the office. No bueno. I will take 5 good judges and 1 that needs to be voted off (as happens veery cyple) vs 5 good judges and 3 bad ones (who are connected hacks and who will never be voted off).

Ted said...

3 words: James Lawrence King

Anonymous said...


Blakely Moore said...

I don't think there is a perfect solution to the problem. Either a judge will have no incentive to please anyone (and thus no real accountability) or an incentive to please someone/everyone (and thus may rule against her better judgment for the sake of appearances).

I like the idea of appointment for limited terms though. Maybe 10-15 years without the possibility of reappointment.

Anonymous said...

There is no good answer to this. If Judges were appointed for a fixed term with no possibility of reappointment, then they would have an incentive to cater to large law firms to hire them after their terms ended.
Our magistrates are selected and (theoretically) subject to merit-based retention, but this hasn't saved us from what amounts to life-tenure for subpar magistrates. There are certainly truly excellent ones (e.g., McAliley, O'Sullivan, Torres) but the district has never gotten rid of a magistrate judge that wasn't up to the job.
All else equal, I think life-tenure for judges appointed based on merit is the best way to go.