Judge not lest ye be judged

People who know me in person also know that nothing is more likely to send my blood pressure spiking than talk about judges.  (To any of my readers who are in fact judges, I’m sure you’re the exception to anything nasty I might be about to say about judges.)  I dislike judges, something that is almost certainly a product of having practiced law in the San Francisco Bay Ara for the entire length of my career.

In the Bay Area, the vast majority of judges act as if they consider their judicial robes the equivalent of a priest’s vestments.  This means that, rather than being constrained by the law, they believe that they have some sort of direct connection, not to God (whose laws exert moral control over the priest), but to some higher liberal morality located somewhere around each judge’s own navel.  The practical result of this is that rulings almost invariably favor politically correct parties over legally correct parties.

This lack of judicial temperament is on its most blatant display in the trial courts.  It’s been about 15 years, but I still haven’t recovered from the trial court judge (now an appellate court judge) who said to me “I don’t care what the law is; I think there’s something here.” Although few judges were as open about their reluctance to apply the law, the deceit that emanates from the bench to justify manifestly wrong decisions indicates that there are a lot of judges out there who “don’t care what the law is.”

The appellate courts are not immune — which is unsurprising, I guess, given that they’re made up of former trial court judges.  Several years ago, I worked on a case that saw the justices lie about the underlying facts in order to achieve their preferred outcome.  This was a particularly vicious little thing to do, since the case (which was published) looks perfect on its face, with stated facts inexorably driving towards an inevitable legal conclusion — except that the stated facts were false, and the underlying record proved their falsity.

The other day, an opinion came down that saw the judges being a little less clever.  They simply lied about the law itself.  Worse, it was a simple enough lie to track down, because they quoted from a case to justify their holding — except that the case from which they quoted said the exact opposite of the principle they claimed to derive from that earlier ruling.  Since they’re appellate judges, which is an office reserved for quality lawyers, I’m going to acquit them of carelessness and stupidity, which leaves only malice.

All of the above griping is a lead-in to an article Thomas Sowell wrote saying that, if judges are going to act like politicians, its time to treat them that way, and vote them out of office:

Arrogant politicians who do this [pass laws that directly contravene the Constitution] are dismantling the Constitution piecemeal — which is to say, they are dismantling America.

The voters struck back, as they had to, if we are to keep the freedoms that define this country. The Constitution cannot protect us unless we protect the Constitution by getting rid of those who circumvent it or disregard it.

The same thing applies to judges. The runaway arrogance that politicians get when they have huge majorities in Congress is more or less common among federal judges with lifetime tenure or state judges who are seldom defeated in elections to confirm their appointments to the bench.

The problem, of course, is that judges function under the radar. Even in elections, voters usually know nothing about them. When it comes time to mark the ballot, the voters either abstain or they pick a name at random. As often as not, the judges (at least in California) run unopposed, which means that votes are irrelevant.

If judges would act like judges — if they would be impartial arbiters ensuring that the Constitution controls overall and that constitutional laws are enforced as written — I would have no problem with lifetime tenure which, in theory, keeps the judges out of the political fray and, therefore, makes them less likely to engage in the type of favoritism that would ensure them reelection.  However, decades of liberal ideology in the court means that judges are not impartial arbiters.  They are, instead, political players who need to be called to account.

Cross-posted at Right Wing News

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  • suek

    Yes.  Another case of Liberal “gate keeping”.  Just like the voting thing…”It doesn’t matter who votes…it matters who _counts_ the votes”  Or, in this case “It doesn’t matter who _passes_ the laws, it matters who _interprets_ the laws”.
    I posted the link for California judges info…I’d sure appreciate it if you’d evaluate the site – I don’t feel qualified in any way to do so.  It appears to me that they use qualifications I’d use myself – but I don’t know if their judgments are valid.  (Story time: My son had a market veal calf he showed at the county fair.  The market animals are then auctioned off, and on the last day are left to be picked up by the slaughterhouses or the purchasers.  His first year, it was decided to gather the calves all into one area, but to save him a bit of grief, I did the line thing for him to put them in the area.  I had watched the class, and listened to the judge as he placed them: this one is top because he has a wider loin, deeper heartgirth etc.  Then I got in line, and with nothing to do other than just stand, wait and shuffle feet, I started looking at the various animals ahead and around me.  The first place calf _didn’t_ have a wider loin and a deeper heartgirth…the next _didn’t_ have a better whatever…what I couldn’t see from the stands when the judging was done, I _could_ see when they were standing all around me.  I _thought_ he had done a good job placing them – it _sounded_ right.  In fact, although all the words were right, the placings simply weren’t.)  So…the placings on the judges voter guide _look_ right, but I can’t evaluate the judging of the judges.

  • jj

    “Quality lawyers” aren’t subject to carelessness and stupidity?  Come, now!
    (You knew when you wrote it that statement would catch my eye!)

  • http://problemiserisa.blogspot.com/ Richard Johnston

    I’ve practiced law in the Bay Area for more than 20 years, on both the plaintiff and defense side of insurance bad faith and ERISA litigation.  My experience does not track yours.  Particularly with regard to ERISA and its <a href=”http://problemiserisa.blogspot.com/2010/11/problem-redux.html“>absurd malignant and unjust effects</a>, many’s the time I’ve had a judge express sincere regret that they had to allow some insurer to fraudulently destroy someone’s life, but that their hands were tied — by a law they clearly disagreed with.  Many judges have gone public with their dismay; a sampling can be seen <a href=”http://problemiserisa.blogspot.com/search/label/Judicial%20Chorus“>here</a>.  (According to the preview my html failed there but the links still show up).  I’ve been engaged in this frustrating practice on the claimant’s side for over ten years now and have seen clients’ lives ruined with no recourse, and ultimately nothing I could do to help them (which has caused no end of regret and soul-searching on my part), and that’s because the law, whether trial judges like it or not, precludes any meaningful relief.

  • http://bookwormroom.com Bookworm

    You’ve been luckier than I, Richard.  I’ve worked on countless cases where I’ve had the law on my side, and my opponent has had no law at all, only to watch the judge “do her own research,” pull out a single case that has nothing to do with the issue, and then use that case to justify a ruling.  That’s actually worked in my favor on occasion, but it’s still a cheap and sleazy way to win.

    In San Francisco, the discovery commissioners used to be especially bad.  (They may still be, but I don’t practice in front of them any more.)  What always bewildered me was their unfamiliarity with the Discovery Code.  I mean, as discovery commissioners, you’d think they would have the darn thing memorized.  As it was, I’d sometimes sit there watching them reading a statute with their lips moving.

    I once narrowly escaped sanctions for violating CCP 1985.3 after I spent a half hour arguing to the commissioner that the notice provisions in that statute (with which I hadn’t complied) applied to doctors, accountants, lawyers, etc., and not to someone’s best friend.  I still remember the commissioner’s blank face as he laboriously examined one of the most commonly used discovery statutes, attempting to see whether, for notice purposes, best friends slotted in with professionals holding private financial and health information.

  • 11B40

    My take on the judicial system is from the Bronx of my youth.  “If you’re in court, you’ve already lost.  What’s to be decided is how much.”