America's Worst Judges

By Max Boot
Copyright 1998 Dow Jones & Co., Inc.
Wall Street Journal (May 29, 1998)

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:

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.


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.

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.

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.

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.

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.

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

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.

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