America today is virtually a juristocracy--government of, by and for people with law degrees. Judges directly run hundreds of prisons, school districts and other institutions; they craft national regulations to govern such divisive issues as abortion, prayer in school and affirmative action; sometimes they even raise taxes. The traditional duties of judges--adjudicating civil and criminal cases quickly and fairly--often seem to get short shrift.
This vast power is not matched by commensurate oversight from the public. Life-tenured federal judges can do pretty much anything they like without fear of being impeached, and state judges are voted out of office only slightly more often than Prince Rainier of Monaco. Given this combination--power without accountability--it is perhaps no surprise then that so many judicial rulings have been so destructive.
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How to rein in the juristocracy? The best way is simply through public exposure. This can affect judges' behavior. Witness federal Judge Harold Baer, who changed his mind about excluding from evidence 80 pounds of drugs seized by police after being attacked by politicians and the press in 1996. Plenty of other judges continue issuing outrageous rulings, however. Here are some of the worst, chosen to illustrate different shortcomings of the legal system:
- Terry McDonald. This state judge in San Antonio, Texas, refused to revoke probation for Kevin Roberson, a 23-year-old reprobate who had already piled up 14 convictions. A month after getting out of prison in 1995, Roberson killed his former girlfriend. "I look for the good in people," Judge McDonald explained. Critics have a simpler explanation for the judge's conduct. "He is pro-defendant," one lawyer told the San Antonio Express-News.
Indulgent Attitude
Certainly the judge's handling of other cases did nothing to dispel that impression. He sentenced one 19-year-old, convicting of taking part in a gang shooting that left two teenagers dead, to no time in jail. In another murder case, involving a defendant charged with going on a rampage in a warehouse that left one man dead and another wounded, Judge McDonald allowed the suspect to walk out of court before trial by lowering his bail to $50,000 from $150,000.
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The judge's indulgent attitude should not perhaps be surprising, given his background. A veteran criminal defense lawyer, he briefly worked for the Bexar County District Attorney's office but was fired after being accused of giving a too-lenient plea bargain to a defendant represented by his former law firm. His conduct on the bench finally led Democratic primary voters this year to reject his bid for another term. But plenty of like-minded jurists remain on the bench in many major metropolises--a big reason why so many criminals go unpunished.
- Russell Clark. Starting with a 1977 lawsuit, this federal judge took over the Kansas City, Mo., school district. His goal was to "reverse white flight by offering superior educational opportunities." So he allowed the school district to order everything from swimming pools to a 2,000-square-foot planetarium. To pay the staggering bill, Judge Clark ordered property taxes more than doubled to $4.96 from $2.05 per $100 of assessed value.
Judge Clark finally gave up control of the Kansas City schools last year. By then, the desegregation plan had already cost $1.8 billion, more per pupil than any other major district in the country. Yet, as a new Cato Institute study points out, the gap between whites' and blacks' test scores has remained constant; African-Americans' test scores are still below the national average; and white flight has increased, not decreased. Any CEO who delivered these results would be fired. But Judge Clark continues to wield power.
- John Fostel. This state judge in tiny Decatur, Texas, presided over a 1995 trial in which a group of local plaintiffs claimed an out-of-town natural gas company had made their water smell like rotten eggs. The jury awarded a staggering $204 million, an amount the judge upheld even though there were no claims of serious injury.
It later emerged that at the time of the trial, the judge was actually receiving contingency fees from the plaintiffs' lawyers, his former law partners, for cases he had worked on before joining the bench. The judge claims one of the gas company's local defense lawyers was aware of this potential conflict, but he acknowledges that he didn't formally inform the defendants. The defendants say they didn't learn about the payments until after the trial.
A state appeals court eventually tossed out the smelly-water award, finding that Judge Fostel had allowed the plaintiffs to admit junk science and had wrongly ruled that their claims weren't barred by the statute of limitations. That the case even got that far raises serious questions about whether the litigation explosion is compromising the integrity of the judiciary.
- John Nixon. This U.S. district judge in Nashville, Tenn., a Carter appointee, has killed every death sentence he's reviewed. Almost as bad, he takes an average of eight years to decide each capital appeal, so there is no closure for victims' families. He seems to grab at any excuse to save a murderer's life. In one instance, he ruled that conditions on death row in the Tennessee State Penitentiary were so unsanitary that they violated the Eighth Amendment. "Three cockroaches running across the floor constitute cruel and unusual punishment," a former prosecutor told the Boston Globe.
The state Senate passed a resolution asking Congress to impeach Judge Nixon. Since that hasn't happened, Judge Nixon continues single-handedly to frustrate Tennessee voters' desire to execute hardened murderers. Other judges have similarly thrown a gavel into the "machinery of death" in all but a handful of states.
- James Heiple. He was elected as a Republican to the Illinois Supreme Court in 1990. Four years later, as chief justice, he wrote an opinion that wrenched three-year-old Baby Richard away from the only family he'd ever known--his adoptive parents--and returned custody to his biological father. In reaching its decision, the Illinois Supreme Court overrode all precedents and statutes, as well as the rulings of two lower courts, which had determined that the biological father was unfit because he hadn't expressed an interest in the child soon after he was born. The court didn't even bother to consider what was in the interest of the baby before tearing him away from the people who had raised him.
Justice Heiple's out-of-court conduct has been just as arrogant. Police have testified that, when stopped for traffic tickets, the justice would flash his court identification card, not his driver's license, in an attempt to escape punishment. By the time word of his conduct leaked out, Justice Heiple had appointed his closest colleague on the court to head the ethics commission investigating him. The commission gave him a slap on the wrist, and although Justice Heiple stepped down as chief justice, he remains on the court. His case demonstrates how our black-robed guardians routinely get away with high-handed conduct in both their personal and public lives.
- Joseph Sullivan. This New York state appeals judge participated in two particularly shocking applications of the exclusionary rule, the court-crafted doctrine that evidence gathered incorrectly by police can't be admitted at trial. In one 1996 case, Justice Sullivan wrote an opinion preventing the New York City Board of Education from taking disciplinary action against a student who had brought a loaded gun to school. In another 1996 case, Justice Sullivan joined with his colleagues to toss out the murder conviction of a drug dealer who had been caught transporting a dead body for burial in the countryside. The appeals court held that two police officers didn't have the right to ask the murderer for permission to search his U-Haul trailer.
In both cases the state's highest court, under heavy political pressure, ordered a lower court to re-examine these exclusionary rulings. But that doesn't change the misbegotten thrust of the law: As Justice Benjamin Cardozo summed up, "The criminal is to go free because the constable blundered." Justice Sullivan, by the way, was reappointed to the bench by Republican Gov. George Pataki, who claims to be tough on crime.
A Republican Appointee
- Ronald George. The chief justice of the California Supreme Court was appointed by Gov. Pete Wilson, another Republican who talks tough but does little about activist judges. Justice George has joined decisions invalidating part of California's "three strikes and you're out" law and prohibiting drug testing of public employees.
His worst ruling came in a case last year challenging a California law that requires parental or judicial consent for a minor to get an abortion. Justice Stanley Mosk, the court's longest-serving liberal, voted to uphold the law--hardly surprising, since California already prohibits minors from getting even routine X-rays without a parent's permission. Indeed, the state Supreme Court had upheld the law before. But Justice George and a new Wilson appointee, Ming Chin, provided the 4-3 margin of victory for the court to reconsider its earlier decision and overturn the abortion statute.
Justices George and Chin face the voters in November, and conservatives hope to consign them to the same fate as former Chief Justice Rose Bird and her two liberal colleagues, who were defeated in 1986. Whatever their fate, an arrogant juristocracy will continue to cast a long shadow over American democracy.
Mr. Boot is editorial features editor of the Journal. This article is adapted from his book, "Out of Order: Arrogance, Corruption and Incompetence on the Bench," just out from Basic Books.