Out of Order: Arrogance, Corruption, and Incompetence on the Bench

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Hear about the judge who got busted for selling crack? What about the judge who released from jail a felon who then promptly killed a rookie cop? Or the one who ordered a prison to supply its inmates with hot pots?In Out of Order: Arrogance, Corruption, and Incompetence on the Bench, investigative reporter Max Boot documents dozens of stories like these as he blows the whistle on the least publicized, the most destructive, branch of the government—the compelling statistics to support his belief that judges have ...

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Overview

Hear about the judge who got busted for selling crack? What about the judge who released from jail a felon who then promptly killed a rookie cop? Or the one who ordered a prison to supply its inmates with hot pots?In Out of Order: Arrogance, Corruption, and Incompetence on the Bench, investigative reporter Max Boot documents dozens of stories like these as he blows the whistle on the least publicized, the most destructive, branch of the government—the compelling statistics to support his belief that judges have greatly damaged both the criminal and civil justice systems.Boot criticizes well-known judges like Lance Ito, who presided over the O.J. Simpson follies, and Harold Baer, the New York judge who initially decided to exclude from evidence eighty pounds of drugs because he found nothing “unusual” about a courier fleeing from the cops. He reveals judges who have taken advantage of their office not only for personal gain, but also to gain greater political power.The “juristocracy,” as Boot calls it, has taken over the running of schools, prisons, and other institutions, with disastrous results: forced busing, which has led to white flight from inner-city schools; higher taxes, as judges have ordered more government spending, regardless of results; and greater social divisions, because judges have taken controversial issues like abortion out of the political arena. Rundowns of case after case reveal judges who have routinely overturned popular initiatives without legal right to do so, implemented controversial policies with no basis in law, and put millions of dollars into the pockets of undeserving plaintiffs.Following in the footstepsof the bestselling Death of Common Sense and Slouching Towards Gomorrah, Out of Order is a tightly reported, highly opinionated expose that should set off a national debate about the woeful state of our legal system. It also offers hope, by providing ways to improve the performance of the judiciary and reclaim its original role as servant of the people.

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Editorial Reviews

Publishers Weekly - Publisher's Weekly
"Judges have assumed unprecedented authority over our lives, usurping powers once delegated to elected lawmakers, based on no solid grounding in the text of either a statute or the Constitution itself," contends "Wall Street Journal" deputy features editor Boot. Though his somewhat right-leaning biases are occasionally visible beneath his research-based approach, Boot's strong writing and even-handed journalism make for a powerful case. (Former Supreme Court nominee Robert Bork's turgid introduction, full of references to "radical egalitarianism," is one example of the less-than-transparent politics that inform the book.) With humor and wit, Boot describes a society caught up in a lottery mentality, whereby juries routinely make outrageous punitive damage awards on the flimsiest of cases, and judges often politically savvy lawyers rather than judicious legal experts fail to throw out frivolous cases and awards. Only a revision of the system by which we select and promote judges, Boot contends, is likely to change the situation. Boot's impressive grasp of the law and his wry, crystal-clear argumentation makes this book one that will be indispensable to anyone curious to know how we managed to turn our society into a gridlock of litigiousness.
Library Journal
Boot, editorial features editor for the "Wall Street Journal", finds judges to be incompetent and corrupt; abusive of the particular trust that comes with their office, they advocate unacceptable social experimentation. Still, Boot can find some worthy judges. Federal district judge Richard Matsch of Denver is one even though he is mildly rebuked in Chapter 5 for his intervention in the Denver public school district. And that may be the true weakness of this book. Boot writes with such broad strokes as to become incredible. The compilers of one standard judicial directory, "The American Bench" (Foster-Long, 1997. 9th ed.), gathered more than 18,000 federal and state judicial biographies. Surely more than a mere handful are competent, ethical, and deserving of our trust. Yet it would be wrong to dismiss this book as unworthy. The concluding chapter advances a number of policy items that merit consideration: judicial term limits, e.g., limits on the jurisdiction of judges to hear constitutional challenges. This book will find favor with more conservative readers. Recommended generally for public libraries. Jerry E. Stephens, U.S. Court of Appeals Lib., Oklahoma City
Kirkus Reviews
A one-stop store of conservative complaints about the judiciary; in trying to eliminate lemons, the author mixes oranges and apples. "We need more public criticism and exposure to hold judges accountable for their actions," says Boot, who is editorial features editor for the "Wall Street Journal." Citing numerous examples culled from his years of reporting, he takes aim at what he identifies as judicial impropriety: favoring cronies, following ideological prejudice instead of legal precedent, permitting juries to impose enormous liability judgments, going easy on criminal defendants, usurping executive and legislative powers, refusing to follow the voters' will, and engaging in financial corruption. He lays blame on the judicial selection process, which rewards political loyalty above legal competence; at politicians who give judicial nominees too little scrutiny; and at the voters, who seldom pay any attention to elected judges' performance. Although Boot makes no secret of his rightward tilt (he thinks 'Brown v. Board of Education' was bad constitutional law, wants to discard the exclusionary rule on illegally obtained evidence, and seems never to have met a corporate defendant he didn't like), he's intellectually honest; for example, he criticizes conservative judges who have struck down affirmative-action programs crafted by state governments, and even rebukes some of the ideas propounded by Robert Bork, who wrote the book's foreword. But his foundation for lumping together examples of utterly different behaviors, that the courts "are trying to provide a remedy for every conceivable `victim' " is weak. In the end, the only element tying together the judge who takes bribes andthe one who gives pro-plaintiff jury instructions in a product-liability case is simply that Boot dislikes both forms of conduct. Neither a screed nor a "balanced" report, this well-written and often witty book should give zest to those who agree with Boot's biases and food for thought to those who disagree.
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Product Details

  • ISBN-13: 9780465048229
  • Publisher: Basic Books
  • Publication date: 1/1/1967
  • Pages: 272
  • Lexile: 1300L (what's this?)

Meet the Author

Max Boot is a senior fellow in National Security Studies at the Council on Foreign Relations. His writing has appeared in many publications, and he has twice been a finalist for the Gerald Loeb Award. His previous book, Out of Order: Arrogance, Corruption, and Incompetence on the Bench, was published by Basic Books in 1998. He lives with his wife and three children in Westchester County, New York.

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Table of Contents

FOREWORD BY ROBERT H. BORK v
INTRODUCTION xv
1 The Injudicious Judiciary: Judges Who Are Incompetent and
Out of Control 3
2 "Perverse Failures": Judges Who Don't Put Criminals Where
They Belong 31
3 Criminal Exoneration: Judges Who Let Lawbreakers off the
Hook 62
4 Juristocracy: The Unelected Legislature 89
5 Juristocracy II: Government by Decree 122
6 The Civil Injustice System: Judges Who Allow Outrageous
Liability Awards 146
7 Justice for Rent: Judges Who Are Ethically Challenged 176
8 Dethroning the Juristocracy: How to Deal with Judges Who
Are Too Activist--and with Those Not Activist Enough 198
NOTES 219
ACKNOWLEDGMENTS 243
INDEX 245
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First Chapter


CHAPTER ONE

The Injudicious Judiciary

-----------

JUDGES WHO ARE

INCOMPETENT AND

OUT OF CONTROL

-----------

Judge--a law student who marks his own examination papers.
H. L. MENCKEN, A Mencken Chrestomathy

    You get to Hayneville, Alabama, by turning off the interstate and heading down a two-lane country road. You drive past countless acres of cattle, catfish farms, and cotton. Finally you zip into a small, tired town where the only industry seems to be government--as in welfare, agricultural assistance, rural health services, Head Start--and the only imposing structure is the county building. This is the seat of Lowndes County, population 12,658.

    On the second floor of the dilapidated if still grand structure, you find a cavernous chamber with rows of pewlike benches and, incongruously, a cage in the corner (for incarcerating miscreants on the spot?). Welcome to the courtroom of Judge A. Ted Bozeman.

    At Hayneville's lone diner, where the blue plate special is often chicken-fried steak, a sign proclaims: "This ain't Wendy's--you'll eat any damn way we fix it." The motto of Judge Bozeman's courtroom seems to be: "You'll be tried any damn way we fix it."

    I visited this Backwoods Blackstone in the fall of 1996 to see post-trial motions in the biggest judgment ever against America's largest corporation--an award of $150 million in compensatory and punitive damages against General Motors. I went there to find out how lawyers can make such a big killing. But in the process I discovered something else: the vital, indeed central role, that judges play in creating disorder in our courts. The case Hardy v. GM opened my eyes to a problem that doesn't get half the ink lavished on unprincipled pettifoggers but is arguably twice as important.

    Alex Hardy, the plaintiff in the case before Judge Bozeman, flipped his Chevrolet Blazer over at 2:30 A.M. one night in 1991 and became paralyzed. A test administered hours after the wreck found he wasn't drunk. But immediately after the accident he told an eyewitness that he'd fallen asleep at the wheel; at the hospital he told a doctor he'd had "a few beers at a party prior to his accident." The severity of his injuries is no doubt explained by the fact that he wasn't wearing a seat belt.

    Out of this quotidian tragedy, James Butler and Jere Beasley--the plaintiffs' lawyers--crafted a masterpiece of innuendo and insinuation. They claimed that the accident occurred because the Blazer's axle spontaneously snapped, an implausible suggestion fully rebutted by GM's engineering evidence. Then they claimed Hardy was injured not because he wasn't wearing a seat belt but because the door latch snapped open and he was ejected while the vehicle was turning over. Although GM argued that the door had never even opened, Hardy's lawyers labeled this a defect. No doubt, if the latch had failed to withstand a nuclear explosion, they would call that a defect, too.

    Butler and Beasley propounded an elaborate theory, complete with distorted company documents, about how the "big bosses at GM" conspired to foist killer door latches on the public. As evidence, they pointed to 211 side-door ejections in GM cars, many of which have led to lawsuits and settlements. But since there are some 30 million GM cars with these latches on the road, that represents an underwhelming failure rate of .001 percent. GM statistics show that its latches actually perform better than those of most competitors, and the National Highway Traffic Safety Administration has refused to take any action against the automaker.

    Before the Hayneville trial, another set of plaintiffs' lawyers had presented a virtually identical case of GM door-latch failure in Brazoria County, Texas, another blue-collar, pro-plaintiff jurisdiction. They sought some $110 million in punitive and compensatory damages. The jury ruled for the defense, finding no defect and no liability.

    Even some members of the Hayneville jury didn't seem to buy the Butler-Beasley line. "I don't feel like all the GM door latches are bad," juror Sidney Logan Jr. told me. "I ain't got nothin' against GM 'cause I use GM motor products myself." Yet the all-black jury decided unanimously to award $150 million--$150 million--to Alex Hardy, who, as it happens, is also African American. Logan explains the jury's reasoning: "He got paralyzed. I figured we should give him something."

    This is, in short, jury nullification--issuing a verdict that flies in the face of the law--and Judge Bozeman allowed it to occur. (To find out what's wrong with nullification, read on.) He even let the plaintiffs rig the jury selection. The jury pool--twenty-four blacks and eleven whites--was representative of Lowndes County's population distribution. But the plaintiffs lawyers used peremptory challenges to strike ten whites, leaving an all-black jury. (The eleventh white had been involved in a similar accident and was knocked off the jury by GM.) The Supreme Court has held that using peremptory challenge in a racially biased manner is unconstitutional, and the defendants objected to the plaintiffs' tactics, but Judge Bozeman decided the plaintiffs' conduct was perfectly acceptable.

    It's hard to overestimate the significance of this apparent dereliction of duty. The previous year, according to the Detroit News, "a Lowndes County jury found for GM in another wrongful death case--after a different trial judge insisted on a jury that included both races."

    Nor did Judge Bozeman seem particularly perturbed by possible juror misconduct during the trial. On the penultimate day of the trial, one of the defendant's paralegals overheard a juror lean over to a plaintiff's attorney and declare, "How long are we going to have sit here and listen to these lies?" GM, citing state court precedents, argued that the judge had a duty to determine whether "this juror had decided the case prior to the close of the evidence and whether she had--due to her strong feelings--influenced other jurors."

    But Bozeman refused to take any action, explaining that the juror "could express her feelings out loud as long as others aren't influenced by that because that's her thought pattern." It's unclear how he knew the juror hadn't committed misconduct since he never bothered to question either her or other members of the panel.

    General Motors' lawyers suggest that the judge was more than inattentive; they argue that because of his links to the Beasley law firm, the plaintiff's lawyers, he had a conflict of interest in handling the trial. At the time that Bozeman volunteered to take over the Hardy case from another jurist--early April 1996--Bozeman's wife, Mildred, was suing a national insurance company. She was being represented by the Beasley firm, to which she had been referred by the judge's son, also a lawyer. This was not a giant class action suit with numerous plaintiffs; Mildred Bozeman was the sole plaintiff in this potentially lucrative case. In addition, the judge's other son apparently worked as an investigator for the Beasley firm.

    GM says it knew nothing of this when its lawyers first appeared before Bozeman at a pre-trial hearing on May 2, 1996. Negotiations for a settlement between the two parties were then in full swing. GM later stated in court filings: "Several rulings made at the May 2 hearing--most notably Judge Bozeman's indication that he intended to exclude evidence that Mr. Hardy was not wearing his seat belt--significantly affected the settlement value of the case." It was not until another hearing on May 8 that Bozeman revealed, "to the astonishment of General Motors' counsel," his apparent conflict of interest.

    Bozeman declared in court that he had not been aware that his wife was being represented by Beasley's firm until April 29, when one of Beasley's colleagues called and broke the news to him. (Perhaps Mildred Bozeman had so many lawyers on retainer that the judge couldn't keep track of them all?) Instead of immediately disclosing the conflict to GM, Judge Bozeman acceded to the plaintiffs' request that he give them "a few days to research" and "see what happens." Consequently, the May 2 hearing and settlement talks proceeded apace with GM still in the dark. In fact, says the company in legal filings, "If this case had settled on May 8, General Motors possibly would never have known about Judge Bozeman's relationship with plaintiffs' counsel."

    As it was, settlement talks fell apart, necessitating the May 8 hearing. The day before, the Beasley firm withdrew as counsel for Mrs. Bozeman. The judge announced that this solved all the problems and refused to recuse himself from the case. GM asked the state supreme court to kick him off the proceedings, but the justices never ruled on the motion, so Bozeman stayed on the case. Meanwhile, the state Judicial Inquiry Commission absolved Bozeman of wrongdoing, concluding that Beasley's withdrawal as counsel for Mrs. Bozeman had remedied the conflict, if any had existed in the first place. But GM continues to argue that the nine-day delay in notifying the company of the conflict gave an unfair advantage to the other side.

    Judge Bozeman's attitude toward the proceedings became evident at the posttrial hearing, where GM petitioned for him to overturn or reduce the damage award. Jere Beasley kicked off the hearing with a rant against outsiders who might find something fishy about this outsize verdict. Having once served as George Wallace's lieutenant governor, he is well versed in stoking populist passions for his own gain (in this case, a share of potentially $50 million in fees, though he wouldn't divulge the actual amount). So Beasley thundered that GM was guilty of "close to criminal" conduct for spreading "false information" to its "surrogates and lackeys," including this author, sitting in the front row of the spectators' section. "They went out and put out false information about this trial, false information about the court, they even attacked the jury!" he exclaimed in mock horror.

    A jurist of any standing and independence would undoubtedly have put a quick stop to Beasley's rant, apropos of nothing. But the lawyer's sallies against the out-of-town defendants found a receptive audience in Judge Bozeman. The judge waxed indignantly about "all kinds of publicity about me" and about "this trial" that "was false." In short, he joined Beasley's populist pose, designed to poison the atmosphere against the out-of-state defendants--from "Dee-troit," as the local lawyers pronounced with relish.

    The judge's attitude should not be surprising, given his background. He grew up in the area; received a bachelor's degree from something called Huntingdon College and a law degree from Jones Law School, a night school not accredited by the American Bar Association; practiced some law; and then in 1976 won election as a district judge, the lowest level of the state judiciary. He was to remain on the bench, never advancing, until the end of 1997, when he retired to make way for the next Judge Bozeman, his daughter. A. Ted--as he preferred to be known--won successive elections, reports a local newspaper, on the strength of the "mom vote" because the judge had a reputation for being tough on "deadbeat dads."

    None of this is necessarily good preparation for trying a mega-case involving one of the world's largest corporations. Indeed Judge Bozeman's command of the courtroom during the post-trial motions never appeared especially strong. When the lawyers would make motions, for instance, objecting to a witness's testimony, all eyes would turn to the judge for a ruling. He would get a deer-in-the-headlights look, a goofy grin would flit across his face, he would mumble something under his breath, and then the proceedings would continue--without anyone having any idea what he had just ruled. At other times, he appeared to be dozing on the bench. Afterward, observers broke into two camps: One camp held that the judge was in dreamland, the other that he was simply resting his tired eyelids.

    What no one could dispute was that at one point during the proceedings, while a learned Yale professor was holding forth solely for the judge's benefit (no jury was present), Bozeman wandered into the audience, put his arm around one of the lawyers, and started whispering to him. "Go ahead, I'm paying attention," he insisted to the startled attorneys.

    With such an alert jurist presiding, it should be no surprise that GM decided not to wait for the court's ruling on setting aside the $150 million verdict. It simply settled the case quietly. Never mind the merits: An out-of-state defendant can't get justice in a place like Lowndes County.

Why Judges Matter

    GM's adventures in Alabama's legal wonderland illustrate the problems that judges of dubious competence can cause. Yet this is a concern that all too rarely captures public attention. Apart from a few high-profile trials--the O. J. Simpson and Timothy McVeigh cases come to mind--virtually the only sustained discussion of judging occurs during Supreme Court nomination hearings.

    When they're not degenerating into name-calling about "back-alley abortions" and "high-tech lynchings," these debates are usually conducted at a rarefied level, with terms like "natural law" and "substantive due process" freely tossed around. Whatever your opinion about the political desirability of a particular nominee, there's usually no question that the candidate, whether Robert Bork or Stephen Breyer, is highly intelligent, experienced, learned, honest, and so forth. But drawing conclusions about most judges by observing Supreme Court nominees is like drawing conclusions about sandlot baseball players by observing the New York Yankees.

    The vast middle ground of American judges, it is fair to say, is far removed from the world of a Bork or a Breyer. Indeed, no one would confuse A. Ted Bozeman with a Supreme Court candidate. Yet judges like Bozeman are, arguably, more important to the future of the legal system than the nine members of the Supreme Court. These ordinary judges--who are likely to work for a state, not a federal, court; who are likely to preside over trials, not appeals; and who, in all likelihood, will never to be written about in the New York Times--are the ones responsible, on a daily basis, for making the wheels of justice turn.

    It is a heavy burden. True, American judges enjoy less power than their European counterparts, who usually make the fact-finding decisions that in this country are generally reserved for juries. But U.S. judges can't escape responsibility for what goes on in their courtrooms, even if many of the ultimate decisions are made by juries.

    In the first place, the vast majority of criminal and civil cases--more than 90 percent--are settled, not tried before a jury; judges guide these settlements and can shape the final outcome through their rulings on various motions. Even when cases do go to a jury, judges can influence the jurors through their comments and instructions. They can tilt their rulings on motions in favor of one side or the other. When all else fails, they can intervene directly and issue a verdict from the bench, notwithstanding what the jury says (the only limitation being that a judge can't find a defendant in a criminal case guilty). And judges play an outsize role in the penalty phase of the trial, ultimately deciding how much, if anything, in damages a plaintiff collects in a civil action and how much, if any, jail time the defendant receives in a criminal case.

    Judges are supposed to use all this power to make sure that justice is done, that at some basic level the verdicts issued in their courts display a certain degree of reasonableness. "The judge," according to the great jurist Benjamin Cardozo, "is under a duty, within the limits of his powers of innovation, to maintain a relation between law and morals, between the precepts of jurisprudence and those of reason and good conscience."

    Alas, today too many judges aren't doing their duty; law is diverging, as in the Hardy v. GM case, from the dictates of reason and morality. The cause for this failure, I believe, is that we have too many judges presiding in our courts whose arrogance far surpasses their competence.

    So what else is new? you may say. And with reason. It's probably true that the bench has always had its share of petty tyrants and nincompoops. But today it matters more simply because the law matters more. Since 1960, the number of lawyers has grown far faster than the population. The number of pages in the 'Federal Register', the annual listing of all the government's new regulations, has skyrocketed in the same period. So has the number of civil and criminal cases.

    All this has vastly increased the power of the judiciary and has expanded its control over our lives. Thus, what could have been shrugged off as a petty annoyance a hundred years ago--bad judges issuing bad decisions--today assumes the proportions of a much more substantial problem. In this chapter, we'll examine the dysfunctional process for selecting and monitoring judges and focus on one of its consequences: judges who display a dismaying degree of high-handedness in both their personal and professional conduct.

A Good Judge Is Hard to Find

    There's a Dilbert cartoon I'm fond of: Dilbert and a coworker are told they're being passed over for a promotion to district manager. The boss explains that their "technical knowledge is too valuable to lose." Therefore, he announces, "The only logical choice is to promote Al"--a dweeb staring vacantly into space--"because he has no valuable knowledge."

    That's actually a good summary of the judicial selection process and helps to explain why we have so many "benchwarmers" in our courts. The American way of picking judges is practically designed to exclude the best and the brightest; thus, we wind up with the likes of A. Ted Bozeman. "Most judges, even Supreme Court Justices, have been plucked from well-deserved intellectual obscurity," writes one observer.

    To be sure, there are some notable exceptions. The federal appeals courts, the U.S. Supreme Court, and a few state supreme courts draw some of the smartest people in government service--the likes of federal appeals judges Jose Cabranes, Amalya Kearse, Richard Arnold (all Democratic appointees); and Frank Easterbrook, Alex Kozinski, and Laurence Silberman (all Republican appointees).

    But for the most part, lawyers of towering intellect and ambition don't wind up on the bench. Attorneys of great drive, who aren't afraid of unrelenting toil and pressure, who flourish in an environment of high risks and high rewards, will naturally gravitate to the major law firms, where starting associates earn more than most judges. Lawyers with a burning desire to change the world will usually go off to law school faculties or public interest law firms.

    The best of this lot will often resist the siren song of the bench. I know of one law professor, one of the most brilliant in the country, who was offered a federal judgeship in the 1980s--not a mere state appointment--and flatly turned it down. The person telling me this story, who worked in the Justice Department at the time, explained, "He felt that he could have more influence if he stayed at the university. And he was probably right."

    Who winds up wearing black robes, then? All too many backslappers and palm greasers, toadies and lickspittles. Would-be judges have to spend years ingratiating themselves in political circles, running errands and doing favors, before they're finally picked for the bench. Most judges aren't selected on merit, any more than politicians are. They're usually selected because of political pull and, increasingly these days, because of skin color or gender. As Curtis Bok once noted: "It has been said that a judge is a member of the Bar who once knew a governor." That's not quite true; sometimes you have to know a legislator, too.

    It's hard to generalize about judicial selection, since each state does things a bit differently, often choosing different levels of judges in different ways. But here's how judicial selection works, broadly speaking, across the country:

* Eight states give the governor almost complete power over judicial selection, with no input from voters. In Rhode Island, the governor can appoint judges for life; in Massachusetts and New Hampshire, until age seventy.
* Nine states allow the governor to pick judges who are then subject, after a year on the bench, to a straight up-or-down retention vote. This system of "merit selection" is known as the Missouri model, named for the state where it was first implemented in 1940. In these states, judges are nominated for the governor's consideration by political and legal worthies who meet in secretive selection committees.
* Seventeen states select judges through nonpartisan elections, which in practice doesn't differ much from the Missouri system, since many, perhaps most, of the judicial candidates are first appointed by the governor to fill unexpired terms after a previous judge has died or quit. They then run for election as incumbents--and invariably win.
* In three states--Connecticut, Virginia, and South Carolina--judges are picked by the legislature, so former legislators tend to be heavily represented on the bench.
* The remaining thirteen states use partisan election, where there's not even the pretense of sorting candidates based on qualifications and politicos simply campaign for judicial office as they would for student council president, congressman, and other disreputable posts. A favorable ruling in every pot!

    No matter which variant a state employs, the winners are inevitably chosen based more on their skill at glad-handing than opinion writing; in other words, based on political rather than judicial skills. The method of picking federal judges is little better. Again, the overriding consideration--sometimes the sole consideration--seems to be the candidate's service to the party in power. Indeed, an academic study found that between 60 and 70 percent of appointees to the federal courts, from Franklin Roosevelt to Ronald Reagan, were politically active prior to their selection, and more than 90 percent belonged to the same political party as the president who appointed them.

    This glad-handing approach can sometimes produce comic consequences. In 1996, for instance, President Bill Clinton nominated to the U.S. Court of Appeals for the Eleventh Circuit--one of the most important judicial posts in the country--a Miami plaintiff lawyer named Charles "Bud" Stack. His chief qualification seemed to be that he had raised more than $7 million for the 1992 Clinton-Gore campaign. His nomination was scuttled only after he revealed during a Senate Judiciary Committee hearing that he had never heard of Adarand Constructors, Inc. v. Pena--the most famous Supreme Court case of the previous term, which had struck down most federal racial preferences.

    This know-nothing system of picking judges stands in stark contrast to the way judges are chosen elsewhere. In many civilized countries, including most of those in continental Europe, being a judge is a lifelong occupation, a part of the civil service. Applicants undergo a rigorous testing process after law school, then they're trained and given low-level judgeships, where they have to prove themselves before being promoted to more senior positions. In Germany, for instance, a judge must spend three probationary years on the bench before applying for life tenure. In France, candidates must generally have twenty-five years of lawyering experience or pass a competitive examination after twenty-eight months of training at the Ecole Nationale de la Magistrature. In democratic and egalitarian America, however, more testing is required to get a driver's license--to say nothing of a liquor license or a taxi medallion, which are really hard to get--than a judge's gavel.

A Process That Produced a Crackhead

Michael Gallagher could testify about how easy it is to become a judge. He should have had some time to reflect on that subject while in prison.

    In 1995, he pled guilty in federal court to possession of cocaine with intent to distribute. At first he was sentenced only to a residential drug treatment program, but after testing positive for cocaine, he was ordered to spend a year in prison and pay a $20,000 fine. At the time of his arrest, this crackhead was a judge on the Common Pleas Court of Cuyahoga County (Cleveland), Ohio. Prosecutors said that Gallagher was arrested right after he offered an undercover Drug Enforcement Administration (DEA) agent a couple of lines of cocaine in the judge's own bedroom.

    The judge reportedly called himself "Chef Boyardee" in allusion to his ability to cook powder cocaine into crack. He also drank heavily and smoked marijuana in front of his children; he was polite enough, however, to adjourn to another room of his house when he used crack. He caroused with a hooker named (no kidding) Sunday Lamb and even asked her to marry him; she refused.

    The judge made no secret of his unconventional views. In court, after sentencing a drug user to probation, he proclaimed that he favored the legalization of drugs and that drug abuse was a victimless crime. He frequently appeared disheveled at work and sometimes referred to lawyers as "dude" and "man." "He was terribly addicted to cocaine," Gallagher's lawyer told me. "It was a pathetic situation."

    How on earth did Gallagher ever become a judge in the first place? Simple: He ran. In 1990, the thirty-three-year-old attorney decided to seek office after he got mad at a judge who refused to reduce the drug sentence of one of his clients. "Your honor!" he hollered. "I'm going to run against you next time!" He carried out his threat, though he didn't seem to do much campaigning after paying his $50 filing fee.

    Gallagher had more negatives than Newt Gingrich: A graduate of Cleveland-Marshall College of Law, he received one of the lowest ratings ever given out by the Cleveland Bar Association in its surveys of judicial candidates. In addition, in 1986 he had been convicted of assaulting his ex-wife and trying to suffocate her with a bath towel.

    Despite these shortcomings, he easily beat three better-qualified candidates--largely, it appears, on the strength of his name. "Candidates with the name Gallagher, like other Irish names such as Sweeney and Corrigan, have traditionally done well in Cuyahoga County," reported a Cleveland newspaper, in all seriousness.

    Oh well, that explains it.

    It should give us pause that someone like Michael Gallagher so easily won a judicial election. It's much harder to imagine a crackhead getting elected to Congress or even to a state legislature. We pay a lot less attention to judicial candidates, so we get a much lower quality candidate.

    And although there may be few crackhead judges, there are plenty of successful judicial candidates just as unqualified as Michael Gallagher. Occasionally, a few first-rate minds also make it onto the bench, but only, it seems, by accident. The system is designed to produce political mediocrities, not independent thinkers. Ted Bozemans, not Learned Hands. Hence the old joke: What do you call a lawyer with an IQ of 80? Your honor.

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