Blaming the Judge

September 1, 1998

The Washington Monthly

September 1998

Blaming the Judge

By E. Joshua Rosenkranz

“Have you heard any good judge jokes lately?” To Max Boot, the question is a metaphor for what’s wrong with our system of justice. Sure, we yuck it up about lawyers going over cliffs in busloads and lying whenever their lips move. We love to hate lawyers because we blame them for many injustices. But no one jokes about judges. Why? Because we hold them in high esteem. Too high, for Boot’s taste. So he aims to change that by exposing the “arrogance, corruption, and incompetence on the bench,” to quote the subtitle of his new book.

Boot, a Wall Street Journal op-ed editor, insists that judges, not lawyers or legislators, are responsible for almost every problem that inflicts our system of justice. Too many criminals at large? Judges are at fault. Too many frivolous suits filed? Too much delay in processing cases? Blame judges. Jury awards shooting through the roof? Again, judges. And, of course, no indictment of judges is complete without the complaint that “activist” judges have flouted the democratic process.

The list of charges is not particularly fresh. Judges have long been preferred targets, especially for politicians. But the tone of Boot’s book is illustrative of the recent escalation of vitriol and a disintegration of accepted norms of conduct toward judges. House Majority Whip Tom DeLay demands the instant impeachment of any “activist” judge who issues a decision he dislikes. Ideologically driven senators throw the federal courts into crisis by refusing even to vote on highly qualified judicial nominees for years. And for every controversial judicial ruling, it seems, there is a politician prepared to introduce a bill to prevent any judge from ever ruling that way again.

This frenzy, which Boot fuels, presents a potentially devastating threat to the independence of the judiciary—and, hence, to our rights. This nation’s founders understood a critical lesson of history: An independent judiciary is often all that stands in the way of tyranny. Not just tyranny of the despot, but tyranny of the majority. The Framers of our Constitution understood that the majority is sometimes a bit too eager to sweep away our individual rights when convenient. They developed a Bill of Rights to protect each of us from the unbridled will of the public.

Judges have the sacred and daunting task of enforcing those rights. Even when those rights compel unpopular results. Or, I should say, especially then. That is why we give federal judges life tenure and why we make it hard to remove judges. A judge who worries that an unpopular ruling will yield a pink slip is more likely to trade in our constitutional rights for his own job security.

Boot, supposedly a libertarian, never mentions this history or even the role judges play in protecting our rights. To the contrary, without so much as a hint of irony, he begins his diatribe by identifying judicial independence and judicial review as “the basic problem.” Our constitutional structure, notes Boot repeatedly, grants judges power without accountability. True, once appointed, lifetime judges are not accountable to us, but that does not mean they are free to do whatever they want. Boot demonstrates as much by citing higher-court reversals or disciplinary proceedings - though his intention is to prove that the judges he vilifies were wrong. Higher courts sit to ensure that judges apply the law correctly. Yet, in a telling passage decrying a litany of jury awards that Boot considers outrageously generous, he adds, “It doesn’t much matter that most of these stratospheric sums are reduced on appeal.” Well, why not?

Don’t get me wrong. As a former public defender, I have too many judge-inflicted battle scars to deny that some judges can sometimes be vicious and arrogant. And, yes, like any collection of humans, the legions of federal and state judges—over 30,000 in all—include some bad apples who are corrupt or incompetent. As to what Boot calls “activism,” thoughtful scholars and jurists—from Robert Bork to the late William Brennan—will debate forever whether the Constitution’s meaning changes over time and how much judges should defer to popular will. Some of Boot’s complaints are worthy of sober discussion. But that is precisely what Boot does not deliver. Instead, Out of Order reads more like an overstuffed tabloid. Boot is no Bork.

Boot is at his best as a raconteur of wacky judicial antics, but don’t expect rigorous analysis. Take, for example, his pronouncement that “soft-on-crime judges” are “responsible for making crime pay,” by which he means that judges’ lenient sentences encourage criminal behavior because criminals know they are unlikely to go to the slammer. A few pages earlier, though, Boot provides the flurry of statistics that disprove him: Because of the very low rate of arrest (7 percent of all burglaries, for example), and the drop off for arrests that don’t get prosecuted and prosecutions that end in acquittal, only 5 percent of crimes even get before a sentencing judge. Crime may pay, but judicial leniency is not the main reason. When it comes to prescriptions, again, Boot disappoints, largely sorting through tired proposals long ago offered by others.

The only new idea Boot presents is that Congress should pass a law prohibiting the Supreme Court from striking a state law except by a two-thirds majority - a vote of 6 to 3. The merit of this proposal, he claims, is that Congress could “arguably” accomplish it without a constitutional amendment. Well, maybe, but only in the same sense that Congress could “arguably” abolish the judiciary outright.

Boot’s favorite solution by far, though, is to expose the malfeasors. Just “shame judges into doing their duty” by publicizing their failures. There is, of course, nothing wrong with exposing judges’ decisions to public scrutiny. But in his tirade, Boot unwittingly furnishes Exhibit A of the case for insulating judges from public pressure.



E. Joshua Rosenkranz, Executive Director of the Brennan Center for Justice at New York University School of Law, is the author of Buckley Stops Here: Loosening the Judicial Stranglehold on Campaign Finance Reform.