Our Judicial System Is Infested with Partisan and Tyrannical Judges
Basic Books • 1998 • 252 pages • $25.00
Max Boot is a journalist and editor at the Wall Street Journal who has made a name for himself (and a lot of enemies) with his articles exposing the despicable practices of plaintiffs’ lawyers who will do almost anything to squeeze money out of “deep pocket” defendants. With Out of Order, he turns his considerable writing and reportorial skills toward another facet of our legal system—judges. Once highly respected pillars of the community, the ranks of the black-robed contain, Boot argues, many who have little or no regard for justice. This is a serious problem that has received too little attention. Thus this is a welcome book.
The bad-judge problem has several facets. One that Boot addresses is partisan judges, ones who have an ingrained preference for certain litigants, lawyers, or causes, so that their courtrooms are about as fair as the Stalinist show trials of the 1930s. Plaintiffs’ lawyers know who they are and naturally contrive to file suits in their courts. You have probably heard of the multimillion-dollar punitive damage awards in cases where there was truly no harm at all, such as the infamous repainted BMW case in Alabama. But how do these absurd instances of legal plunder ever get to trial at all?
The answer is that some judges—elected with copious amounts of money contributed by lawyers who will have cases before them—are unwilling to serve the interests of justice by dismissing suits that are transparently nothing more than legal extortion. Boot names names and gives the nasty details.
But the harm done by rogues who play favorites is minimal when compared to the harm done by another class of bad judges—those who have aided and abetted in the unconstitutional expansion of power of government. This has mainly been the work of the Supreme Court and the lower federal courts, many of whose members have been chosen for their philosophy that the Constitution’s restraints on governmental power should be “interpreted” in such a way as to give the Congress and President virtual carte blanche. This category includes judges who insist on amending the Constitution through creative interpretations. As an example, Boot cites Justice Ruth Bader Ginsburg—long an advocate of the vague, never ratified “Equal Rights Amendment”—who managed to smuggle it into the Constitution with her opinion in the Virginia Military Institute case.
Yet another facet of the bad-judge problem is the phenomenon of judges who regard themselves as potentates, taking over prison systems, ordering busing schemes, and even decreeing that taxes be raised for their utopian visions. Consider, for example, the Kansas City judge who decided that he was going to “equalize” educational opportunity by ordering an incredibly costly program of inner-city school construction, or the New York judge who ordered the City of Yonkers to build hundreds of units of low-income housing in middle-class neighborhoods. Power always attracts authoritarians. That judges can get away with a lot of tyranny bodes ill for the future.
Given that we have a judicial system infested with judges who are partisan and judges who use their positions to coercively reshape society, what are we to do? Boot discusses several ideas for ameliorating the problem. He suggests, for example, ending the practice of popular election of judges, which has had the unfortunate effect of putting justice up for sale—read his account of a race for the West Virginia Supreme Court. That might help, but it might just as well turn out like so many other attempts to clean up the political system and merely hide the problem.
Assume that judges were chosen through some other political mechanism. The special interest groups that have been getting the judges they want through elections will not give up their quest merely because we enact some reform statute. They will simply concentrate their efforts on influencing the new judicial selection method, perhaps by getting friendly faces appointed to the judicial selection board. Under a “reformed” system, it may be even harder to identify judges who are puppets of organized labor or the plaintiffs’ bar.
The bad-judge problem has the same roots as most of our other problems, which is to say, our over-politicized society. Trying to rein in partisan and Constitution-wrecking judges is, I fear, an exercise in futility as long as so many people see politics as a legitimate way of getting what they want.
But even if there is no easy remedy for the bad-judge problem, we still ought to be cognizant of it. Out of Order skillfully assists us.
