By Ben Buttler
“Many judges today are quietly and competently serving on all levels of courts. But there are also corrupt, incompetent and arbitrary judges.” — Lois G. Torer, Former Pennsylvania State Court Judge
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While the number of complaints has escalated, the number resulting in discipline has remained astonishingly low. 260 complaints ended up in 8 instances of discipline in 1980. But in 1993, that number remained almost unchanged while the number of complaints rose more than 300 percent. | |
very appealing image of justice endures in the American system of law. It has an almost fairy-tale quality, portraying courts as places where wrongs are righted, harms are corrected, and bad succumbs to good. Judges, the ultimate guardians of the public trust, are the sage dispensers of justice for the aggrieved and of just punishment for transgressors in a forum where integrity breeds competence, competence promotes equality, and equality results in justice.
It is comforting to assume that such a crucible of justice is free from the poisons of prejudice, corruption, incompetence, and sloth. Comforting, but every bit fairy tale. While it is no doubt true that day in and day out, equitable, competent, and diligent judges strive to meet the ideals symbolized by the robe and the gavel, it is a sad reality that when power, human capacity for temptation, and virtual freedom from oversight collide, the residue too often is injustice.
The blunt, unpleasant truth is that judicial incompetence, bias and corruption are widespread, but very well-concealed. When a notable or spectacular case surfaces, or when the conduct shocks either a grand jury or political correctness into action, the public learns that villains who wear robes exist in their fairy tale of justice. But what the public sees is only a fraction of the problem, and the administrators of the system of justice clearly intend to keep it that way. And while those may appear strong words, unfortunately, they are backed by strong facts.
Freedom has investigated and analyzed the administration of justice from the perspective of an observer able to take a snapshot of reality and compare it to a portrait of the ideal of justice. The closer the two portrayals to being mirror-images, the better the system. Sadly, the snapshot and the portrait too often depict different subjects.
What is plainly apparent is an utter lack of realistic qualifications and training for judges, with the inevitable result that there will be incompetence.
Neither is there any mechanism for isolating and exposing prejudice among judges — not merely racial or religious or gender prejudice — but also political and regional prejudice. The result is injustice through bias, because bias erodes integrity however it manifests itself.
There is also no effective or even meaningful accountability or enforcement in all but the most egregious cases. Soft discipline means soft standards, and corruption is the natural result.
Judicial Selection and Training: Making Competence a Goal Instead of a Wish
Like it or not, in a system where a government executive with political debts appoints judges either to a life term or subject to re-election by a thoroughly uninformed populace, the primary sophistication most members of the judiciary share is political, not legal.
Judicial appointments are made on a “who you know” rather than a “what you know” basis, and they are every bit as political as the appointment of any other political crony or supporter to any other political position. Just being a friend of the chief, however, is no guarantee of ability. Yet political appointments, made with diligence and with fidelity to the needs of the position to be filled can work. But other factors severely limit the pool of qualified people from which judges must be selected.
Candid litigators are quick to point out that all judges are not created equal. Some simply know more law than others, and some simply understand the law better. Some are smart; some not. Some are diligent; some lazy. Too many are jaded, feeling overworked and thinking that everything boils down to money. When every decision is treated as a matter either of money or convenience, justice is endangered on a daily basis.
Treating every matter as merely an issue of time or money also perpetuates overcrowded dockets and encourages litigation. Sometimes justice requires restraint; sometimes justice means telling a plaintiff “no.” But as settlement, even for “nuisance value,” becomes the norm, the courts become dispensers of cash rather than justice, and greed displaces equity as a defining characteristic of “justice.”
Judicial salaries are an obvious influence on the quality of justice. The low salaries paid to judges are an automatic selection mechanism which leads to lower standards and lesser talents. The more competent among attorneys tend to continue in private practice where they can earn five or six times or more what they would make on the bench.
Room for advancement is also extremely limited, and the compensation is only slightly better at higher appellate levels. With the exception of those who choose a judicial career for public service reasons — a smaller and smaller group as time passes — the more typical situation is that an attorney with modest career potential seeks a judicial career for the certainty of the paycheck and the presumed regularity of the hours.
It is a real boon to the struggling attorney who happened to go to law school with a colleague who developed political clout. It brings prestige and power to a practitioner who otherwise labors in uncertainty and obscurity. Increased salaries for judges is often promoted as the panacea for the quality of the American judiciary. But, while true to a degree — it would broaden the pool from which judges are chosen — it is both a simplistic and an incomplete solution to the problem of judges who do not know how to judge.
A judicial appointee comes from private practice, a prosecutor’s office, or another government office which typically has provided the judge-to-be with exposure to the courts, the judicial process, and an area or several areas of law. That scope of experience obviously varies from person to person, but it scarcely can be suggested that limited backgrounds such as these actually prepare a judge for the breadth of issues that he or she will face, or the pressures under which a judge sometimes must labor.
“Many judges today are quietly and competently serving on all levels of courts. But there are also corrupt, incompetent and arbitrary judges.” Lois G. Torer Former Pennsylvania State Court Judge |
Judicial training is minimal at best. The educational materials and courses are typically limited in scope and often administration-oriented, and there is no continuing education requirement. Freedom contacted the Federal Justice Center in Washington, D.C., which is under the U.S. Supreme Court and provides all training programs offered for federal judges at all levels. There are short seminars and home study courses, but “nothing is mandatory,” said Mary Theresa Kelly, who oversees judge training at the center. “We are a small agency, and we do our best to offer the best training courses we can, but none of them are compulsory.”
Plainly, there are no apprenticeships under experienced judges and no effective formal procedures for helping the new judge to learn the best ways to handle his or her tasks. “Sink or swim” appears to be the essential motto of most judicial “training.”
