The Devil You Know: Judicial Selection In America
Working Draft by Kenneth L. Smith¤



     On April Fool’s Day, the state of Wisconsin decided to hold a judicial election -- called “one of the nastiest in recent history.” 1 As retired Colorado Supreme Court justice Rebecca Love Kourlis observes, "Wisconsin is the current hot spot in the culture wars that have played in the courts in recent years. … More and more money is being poured into these judicial races, more planning on how candidates position themselves for a political audience. These elections have simply gotten out of control."2 James Sample, counsel at the Brennan Center for Justice at New York University, was quoted as calling the race “one of the true low points for judicial elections around the country.” 3 Total campaign expenditures were estimated at around $5 million -- with some 80% coming from partisan special interest groups.4 In the wake of this spectacle, the calls for change were inevitable. The Wausau Daily Herald lamented:
If this only were a matter of holding our noses, suppressing our gag reflex and suffering through elections that are unbounded by any limits on taste or dignity, any cure would be worse than the disease.

But it's not that simple -- not by a long shot. This race and the previous election between Annette Ziegler and Linda Clifford left Wisconsinites with the perception that our high court is for sale to the highest bidder.5
     The match for this juridicial bonfire was lit by the United States Supreme Court in Republican Party of Minnesota v. White,6 where the Court held that a state could not prohibit candidates for judicial offices from announcing their positions on controversial legal and political issues during their campaigns. Ironically, the swing vote in the case was cast by none other than Justice Sandra Day O’Connor, who has spent her subsequent retirement championing the abolition of judicial elections.7 Furthermore, the Supreme Court has created a curious disconnect, as candidates for federal judicial posts have historically refused to answer questions regarding their constitutional views on the ground that “any such interrogation would compromise the constitutional independence of the judiciary.” 8

The Problem: "We Are the Men In Black!"

    The fundamental peril to our liberties posed by our modern judiciary is expressed succinctly by the Maine Supreme Court:
Lawless judicial conduct -- the administration, in disregard of the law, of a personal brand of justice in which the judge becomes a law unto himself -- is as threatening to the concept of government under law as is the loss of judicial independence.9
     If our judges could be trusted to fairly apply the law of the land to the facts of each and every case, it wouldn’t matter whether they were elected, appointed, or chosen at random.  Conversely, if a judge is free to substitute his own personal prejudices for a fair and equable application of the law, the concept of equal justice under law dissolves into nothingness.  It is precisely because our modern judges have so openly abandoned their traditional role of arbiters of the law -- assuming the mantle of unaccountable super-legislators -- that the matter of who our judges are has begun to take on such paramount importance.

    Truth be told, history is replete with examples of judges rewriting the law under the fraudulent guise of interpreting it.  Where it is most blatant and objectively detectable is in decisions that either expand the power of the judiciary or cement a judicial legacy.  While these opinions range from the adroitly-delivered to the truly ham-handed,10 the message they send is clear: The power to declare the law is the power to write it. 

     In paeans meant for public consumption, judges (and their handmaidens in the organized Bar) have gone to considerable lengths to foster the illusion that they apply all of the law in a fair and even-handed manner -- waxing eloquently about the rule of law, and how our legal system serves as a model for the civilized world. Quoting President Woodrow Wilson, Justice O‘Connor proclaimed that “‘the struggle for constitutional government is a struggle for good laws, indeed, but also for intelligent, independent, and impartial courts.’ … When the power to make laws is separated from the power to interpret and apply them, the very foundation of the Rule of Law—that controversies are adjudicated on the basis of previously established rules—is strengthened." 11 Of course, the obverse -- when judges have power to act as lawmakers, the Rule of Law is imperiled -- is equally true. Therein lies the problem, as summarized by Justice Breyer:
He recounted a trip to Russia soon after the ascent of Boris Yeltsin where he heard about “telephone justice” — the practice of officeholders with judicial appointment powers “calling judges and telling them how to vote.” But America has at least the “appearance” of the same problem, he added, “because half the country thinks judges decide cases any way they want.” 12
     The fundamental malaise in the American system of justice has been precipitated by the perception that our judges, intoxicated by untrammeled and unchecked power, have strayed so far from the Hamiltonian ideal13 that they are increasingly seen as no longer worthy of the title. The people reasonably expect judges to “rule by the letter of the law, not the whim of the gavel," 14 but some of our servants of the law have become so haughty, arrogant, and disdainful of their legal and moral obligation to apply the law without fear or favor15 that they have become de facto dictators. The ever-acerbic Judge Robert Bork bluntly asserts that America is a regime governed by a despotic “judicial oligarchy,” 16 brought about by what he termed a “judicial coup d’êtat.” 17As Judge Richard Posner of the Seventh Circuit laments,
[the kingdom of the rule of law] has shrunk and grayed to the point where today it is largely limited to routine cases, and so a great deal is permitted to judges. … If changing judges changes law, it is not even clear what law is.18
     These learned jurists’ incendiary rhetoric is supported by empirical evidence. Legal scholars have shown quantitatively what all appellate lawyers understand intuitively: The most important factor as to whether you will prevail in court is who your judges are.19 This predilection is most pronounced in adjudication of close electoral disputes, wherein the outcome can be predicted with disturbing accuracy by merely ascertaining which political party had put the judges in question into office.20 But pervasive judicial bias isn’t limited to political cases, if this astounding admission, attributed to Denver-based federal magistrate judge Kristen Mix, is any indication:
The biggest problem with your case is that Judge Nottingham hates employment cases and there's nothing you can do about it. It's random. Now don't get me wrong, he's a fine judge, but he just hates employment cases. That's why he will try to find any way in the summary judgment briefs to say there's no material issues and grant summary judgment, and if he doesn't, he will make it tough at trial, and you won't win . . . I'm going to look you right in the eye and tell you that you're gonna lose.21
     Even more astounding are the judge’s comments in dismissing the motion:
Even accepting Plaintiff’s affidavit as true and further assuming the magistrate’s statements to be accurate, my “judicial leaning” is an improper basis upon which to premise a recusal motion.

Additionally, the sufficiency of Plaintiff’s section 144 affidavit is undermined by the fact that it is based entirely on hearsay and conclusory opinion. Where, as here, the hearsay statements fail to demonstrate personal bias and, moreover, are tenuously corroborated only by Plaintiff’s own conclusory assertion that I “had [sic.] personal bias or prejudice” against him, an affidavit is patently insufficient. Moreover, the context in which the magistrate’s comments were made further impugns their reliability: they were made in an attempt to persuade Plaintiff to accept a settlement offer.22
     In his ruling, the judge concedes that if the magistrate made those remarks, she made them in a settlement conference, while acting as his direct and immediate subordinate. As it was made in her representative capacity, it is emphatically not hearsay.23 And to compound insult to injury, he is openly declaring that it is permissible for magistrates speaking in his name to lie in settlement conferences, effectively blackmailing parties into accepting an inadequate or unjust settlement offer.

     The judge in this case is none other than Chief Judge Edward J. Nottingham of the District of Colorado, who has factored into more than his share of salacious headlines in the past year,24 as he stands “accused of drunken carousing at strip clubs, surfing porn sites in his chambers, patronizing an escort service, and behaving abusively toward a wheelchair-bound attorney over a disabled parking space.”25 These are not idle accusations: He admitted during his recent divorce that he became so inebriated at the Diamond Cabaret (a local strip club) one evening that he literally couldn’t remember how he spent over $3,000 -- presumably, not including generous and carefully-placed tips to the scantily-clad ladies.26

     Judge Nottingham’s animus toward employment law cases is widely known in the local legal community,27 and appears to have existed from the outset of his judicial career.28 Furthermore, he has great difficulty in concealing his disdain for employment law cases if the following photo, embedded in one of his orders,29 is any indication:

     Although it is bad enough to be an employment-law plaintiff in Judge Nottingham’s fiefdom, Ivy League-educated physician Dr. Elizabeth Steiner achieved the trifecta: She was a whistle-blower30 who arrived in his court as a pro se litigant. Judge Nottingham was a Republican before he was put into office by the first George Bush,31 and whose family owned half the Vail Valley;32 he has little time or patience for the unwashed masses.

     The anecdotal antics of Judge Nottingham exemplify the problem: rogue judges, who make up their own rules because they can. Judges face many temptations -- from a desire for public praise to added leisure time -- but no one knows how often they succumb, for the fact that a judge “has yielded [to temptation] can in most cases not even be detected.” 33 All that can be fairly said is that it happens often enough to bring the judiciary as a whole into widespread public disrepute.


The Devil You Know . . .

    There are two ways to choose our judges: via election, or executive appointment. Thirty-nine states elect some of their judges;34 more than thirty states (and the federal government) appoint some or all of theirs.35 Both systems suffer from inherent flaws, deleterious to the concept of the rule of law.

     The main problem with the election of judges, especially in light of the White decision, should be obvious to all, and best illustrated by the example of what would happen if Judge Nottingham had to stand for re-election. While Congress provided robust remedies for employees who have been unlawfully discriminated against, it is the rare litigant in Judge Nottingham’s court who can avail himself of them. And under White, Judge Nottingham literally could run on that platform: “I don’t care what Congress said; I’m going to re-write the law as I see fit!”

     The primary blessing of a system of contested judicial elections is that Judge Nottingham’s hypothetical opponent would be highly motivated to bring his wretched judicial temperament and blatant disregard for the law to the attention of voters, who probably wouldn’t appreciate having judges decide for themselves which laws they will and will not enforce. But that blessing is also its greatest curse, as judicial campaigns cost money, special interests are willing to invest it, and they will expect a return on their investment in the form of judicial bias. This translates into the utterly fair perception that you can only get as much justice as you can afford.

     Majorities can raise armies, elect leaders, and generally take care of themselves. The genius of our system lies in the fact that our Framers recognized that liberty is individual in character, and that the only way it can be protected is to provide a mechanism by which individual rights can be reliably vindicated. In our system, this mechanism is the courts. In a system relying on judicial elections, the judge is too accountable to those who put him in office; just as English judges who served at the pleasure of the King were reluctant to rule against him, the modern judge who has to stand for popular election is susceptible to undue influence from the people who elected him. When given a choice between ensuring his re-election by pleasing his constituency and making a legally unassailable but unpopular decision, the rational judge can be expected to favor his own interests.

     In the past, concern that a judge would face reprisals from the electorate for technically correct but widely unpopular judicial decisions has been mostly theoretical. Longitudinal studies have shown that even in those states that elect state supreme court judges, only half even face a challenger, and only about 15% the judges who were faced an electoral challenge failed to garner 55% of the popular vote.36 But in a post-White world, where races for spots on the state supreme court can cost $10 million,37 and militant political organizations like Focus on the Family weigh in on key campaigns,38 this concern is growing exponentially. Formerly ‘non-partisan’ judges are openly asked to declare their political pretensions39 by partisan interest groups, which promises a sea change in the way judges are By way of example, Iowans Concerned about Judges points out that White justifies this, asserting that
the law says that answering these types of questions definitely does not hurt a judge's fairness or impartiality (see pages 774-784); and that it is desirable to select judges who have preconceived views on legal issues--it shows them to be more qualified (see pages 777-778).40
     In short, the Scalia wing of the Court may have unwittingly created a monster, where in the near future, American judges will be elected on the basis of how they can be expected to vote on certain hot-button issues.41

And the Devil You Don't:

     It is an old lawyer’s joke that “a judge is a lawyer who once knew a governor.”  About half of American judges are appointed to their posts, through a system euphemistically known as “merit” selection.  By way of example, in the federal system, names of potential candidates are typically suggested to the President by political allies.  Home-state Senators are then consulted; the President nominates the candidate; the Senate then holds hearings, and either confirms or denies the appointment.42  The end result, of course, is federal judges who are often nakedly partisan.

    Many states have adopted a similar process, known generically as the “Missouri Plan” (after the state that first adopted it) -- a system supporters claim takes politics and corruption out of the judicial process.  While the process varies from state to state, judicial candidates are chosen by a nomination commission comprised of an equal number of laymen and attorneys, usually selected by the governor or chief justice of the state supreme court.  The commission presents a short list of candidates to the governor (typically, three), who appoints one of them.  At the next election cycle, voters are asked to either retain the judge or remove him or her from office.

     The theory behind this scheme is that the average citizen, unschooled in the law, has no good way of evaluating whether a given candidate would make a capable judge.  Critics denounce it as elitist and anti-democratic, an indictment not entirely without merit; review of 150 supreme court justices’ biographies from election and appointment states chosen more-or-less at random shows that nomination commissions usually tended to prefer candidates from upper-tier schools, while the electorate tends to prefer homegrown candidates.43

      Furthermore, the merit selection supporters’ claim that the process would produce a less political judiciary doesn’t seem to translate very well into the real world; if anything, these systems actually tend to politicize our courts, and judicial selection has always been inherently political.44  By way of example, in three high-profile election law cases in Colorado, Florida, and New Jersey (all merit selection states), with one notable exception, every one of the ‘non-partisan’ judges and justices voted on a straight party-line basis.45

     Given the structure of the selection system, this outcome is predictable.  Colorado’s system is fairly representative: Seven attorneys are nominated to the selection committee via majority vote of the governor, chief justice of the state, and the state attorney general for six-year terms; seven non-lawyers are nominated by the governor.46  As a state governor can easily pack a commission with partisan activists, the “merit” selection process is in essence a political one, wherein the right to remake the judiciary in one’s own image becomes a de facto perquisite of office.

     Worse yet, a commission can game the system, effectively dictating who the candidate will be by presenting one qualified candidate, along with two clearly inferior ones, to the Executive for consideration.  Moreover, as the appointment process is shrouded in a veil of secrecy, and the pool of candidates under consideration is never disclosed, there is no way to audit the process.  Finally, the window for public comment is so brief that pre-appointment input is minimal at best.  Thus, the question is not whether there will be politics in the judicial selection process but rather, whose politics: The politics of the few -- or the politics of the many?

Appointed Judges: As Pure As Ivory Snow?
     While supporters of merit selection claim that the general public has meaningful input in the system in the form of retention elections, the evidence establishes conclusively that they are little more than mere formalities.  In the most comprehensive study available, only 56 of 6,306 judges lost retention bids; as more than half of the losses occurred in Illinois (the only state with a 60% retention threshold),47 in other states studied, the judicial retention rate was roughly 99-44/100%!  For those of us old enough to remember the Ivory Snow commercials, this curious state of affairs begs a natural question: Are appointed judges as pure as Ivory Snow?

    The answer appears to lie in the system itself, which appears to be designed more to protect the judges than inform the general public.  By way of example, of 108 Colorado judges standing for retention, the Colorado Commissions on Judicial Performance recommended that each and every last one of them be retained.48  Even when a judge has a record like this, he or she typically earns a “no opinion” rating:
In survey, interview and public hearing responses, there was a general sense that Judge Ruybalid relies too heavily on court personnel to make judicial decisions, does not know or apply the law, treats women unfairly, has insufficient experience in criminal or jury trials and does not prepare adequately for court. There is also a general concern that Judge Ruybalid manages his docket poorly, is habitually late in starting court, and exercises poor communication to courthouse staff regarding his absence from the courtroom. 49

     Bottom line, you have to be spectacularly incompetent to lose your judicial sinecure in a merit selection jurisdiction.  Only one Colorado judge out of roughly 500 in the past decade received the Commissions’ kiss of death: a “do not retain” rating.50  Not that it mattered; the judge was re-elected, anyway.51

    Why are judicial retention elections rarely more than mere formalities?  First, in most retention elections, voters have almost no useful information about the candidate for retention.  Judicial evaluation commissions tend to evaluate sitting judges with an obsequious hand,52 and there is no opposition candidate to bring their shortcomings to the attention of the electorate.  Second, voters are not really given much of a choice; all they can do is either vote for the devil they know, or the devil they don’t.

The Lesson of Jail4Judges: “Cardinal Law” vs. Cardinal Law

     About the only thing that can be reliably said about either system is that (with the exception of the judges themselves, and barristers who have learned to benefit from it) is that everyone is unhappy with the system they have.   While movements are afoot in states like Pennsylvania,53 Minnesota,54 Nevada,55 and South Dakota56 to enact “merit” selection systems, merit selection states like Missouri57 and Tennessee58 are contemplating major revisions to theirs.  Coloradans tried to impose ten-year term limits on judges59; the state Bar lavished $1.3 million on a remarkably disingenuous60 campaign to bring the measure down to defeat.61  But perhaps the most far-reaching initiative was the plan by California-based Jail 4 Judges to create a citizen tribunal with power to criminally prosecute judges who made indefensible decisions,62 which made it onto the ballot in South Dakota in 2006 as Amendment E.
     The early public embrace of Amendment E -- which was in many ways fatally flawed -- was a seismic shock to our judiciary, as it showed that public dissatisfaction with its performance was as widespread as it is deep.  On the very eve of the election, polls showed that Amendment E was universally favored in every demographic: men, women, Republicans, Democrats, and independent voters.63 But more importantly for purposes of our analysis, this dissatisfaction is every bit as widespread in “merit selection” jurisdictions (e.g., Colorado) as those having judicial elections (e.g., South Dakota).  Accordingly, the problem isn’t with how we select judges, but what they do once they ascend to the bench.  With unusually brutal candor, Judge Miner of the Second Circuit explains:

The major cause of the loss of public confidence in the American judiciary, however, is the failure of judges to comply with established professional norms, including rules of conduct specifically prescribed.  In brief, it is the unethical conduct of judges, both on and off the bench, that most concerns the citizenry….64
     This problem, merit selection won’t even begin to fix.

The System of Judicial “Self-Discipline” Is Shattered Beyond Repair

Judicial conduct organizations, like the Wisconsin Judicial Commission, exist in all 50 states and the District of Columbia. Their task is to enforce high standards of judicial behavior, both on and off the bench, without compromising judicial independence. They strive to maintain public confidence in the judiciary by providing a forum for the expeditious and fair disposition of complaints of judicial misconduct and disability.65
     In January, a judicial conduct panel for the state of Wisconsin recommended a public censure of state supreme court justice Annette Ziegler.66  Her transgression?  While a district judge, she presided over eleven civil cases brought by a local bank, while her husband sat on its board of directors.67  The panel found that the rules governing her conduct were clear and her violation of them were indisputable, and as a matter of law, her violation was willful.68  But in explaining why such a light punishment was appropriate, the panel solemnly intoned:
[t]he supreme court has made it clear that punishment is not a permissible consideration.  In re Judicial Disciplinary Proceedings against Crawford, 2001 WI 96, ¶38, 245 Wis. 2d 373, 392, 629 N.W.2d 1, 10 (“Discipline is not intended to punish the judge.”).69
     This, in turn, begs the question of what the purpose of “judicial discipline” is -- or more to the point, why it is even called “judicial discipline.”  To suggest that you can enforce high standards of judicial behavior when a judge can’t be punished for willfully flouting them (as Justice Ziegler did here) blazes new trails in absurdity.

     Judicial misconduct is almost certainly under-reported, says Florida State University professor Bruce Benson, on account of the institutional need to persuade the general public that the system ‘works’ -- even when it doesn’t.70   Judges in particular are highly motivated to squelch reports of corruption -- which can hit them where they live.  In connection with the recent Tampa scandal,71 which claimed four judges, Christopher Goffard reports:
The unease extends even to judges untainted by scandal. . . . Some think [Holder’s] crusade has smeared every judge there. They blame him, as much as they blame Alvarez, for the jokes they still hear at cocktail parties, the arched eyebrow when they mention where they work. A judge? In Tampa? How interesting.72
      Like Nixon White House officials 73 and Catholic priests,74 judges are notorious for protecting their own.  Whistle-blowers routinely suffer brutal retaliation: Judge Gregory Holder, the West Point graduate75 at the center of the Tampa scandal, had to spend $2 million of his own money to defend himself against a dubious charge brought by the Florida Judicial Qualifications Commission that he plagiarized a paper he submitted to the government to obtain his rank as colonel in the Air Force Reserve.76  Similarly, Colorado Supreme Court Chief Justice Mary Mullarkey took action against former District Judge Jesse Manzanares for reporting his suspicions regarding a colleague’s alleged cocaine abuse to authorities, replacing the accuser with the accused as the chief judge of the circuit.77

     With the cost of integrity so high, and the level of scrutiny so low, it is not surprising that punishment for judicial conduct is essentially non-existent, as Senior District Judge John L. Kane of the District of Colorado confessed for an article in the Washington Post.  Professor Ronald Rotunda observes:
John Kane (who gave me permission to quote his e-mail), wrote, "I've been a district judge for 29 years and think the federal judicial house has brought this legislation on itself." He sat on the 10th Circuit Judicial Council when the first complaint about a judge came up for consideration: A district judge was trying to coerce counsel into establishing a library on product liability cases in honor of the judge.

Judge Kane's e-mail is worth quoting at length. He voted for discipline. The vote was 3 to 3, "and so the Chief Judge voted against sustaining the complaint because it was the first such complaint and he thought a close vote was too slender a reed upon which to proceed. As we were leaving the meeting, one of the judges who had voted to dismiss collared me and said, 'John, think about it. The next time it could be you or me. We've got to stick together.' "78
     At the risk of stating the obvious, the unnamed judge didn’t just accept a bribe, but solicited one.  After all, any law firm with the wherewithal to establish a product liability library is almost certain to have one of its associates appear before the judge again.  And, had the law firm meekly complied with his request, the eternally grateful judge could have displayed his gratitude in many useful ways, both subtle and gross.

     As a general rule, if a state is large, and has a system of judicial elections, its disciplinary process is usually pretty decent.  This is what you would intuitively expect: Since the dirty laundry is going to be aired in the next election anyway, there is no overarching incentive for disciplinary commissions in states with judicial elections to cover it up.  Moreover, small states tend to have better-established “good old boy” networks.  But there are exceptions.  While corruption has long been a staple of our courts, it may never have been as pervasive as it became in Cook County, Illinois -- where the entire Circuit Court was described as “a criminal enterprise.”79 And yes, that is Cook County, as in Chicago. To win his case, a lawyer had to put cash in an envelope for the judge … and pay the bailiff to give the envelope to the judge.80

     Although it is a damning indictment of human nature in general, Michigan’s judicial blotter is the most consistently amusing.  One alcoholic judge recently insisted he ‘hadn’t been drinking’ when he managed to plow his SUV into a convenience store.81  Another was busted for lighting up a doobie at a Rolling Stones concert.82  Others include a judge who reportedly referred to himself as God,83 another caught fixing traffic tickets in exchange for sexual favors, and another suspended for lying to investigators about her love affair with an attorney now serving life in prison for murdering his wife.84  And then, there is the one about the married judge who exposed himself in an airport men’s room, apparently while soliciting anonymous gay sex.85

    The judicial blotters in New York, Texas, and California are equally robust.  In the borough of Brooklyn, the corruption is so thick that judges almost have to buy their gavels,86 and when they do, they end up laundering money for the Mob87; one woman went undercover to offer a bribe to a domestic relations judge who was thought to be on the take, only to learn that her husband had already bribed him!88  Judge James Brooks did his part to preserve California’s reputation as the land of fruits and nuts, encouraging defense counsel in an employment discrimination case to hum the theme to The Twilight Zone during the plaintiff’s testimony.89  Even Judge Nottingham didn’t go that far.

      By stark contrast, in jurisdictions like Colorado, judicial discipline takes place entirely behind closed doors.90  The bench and bar control the process from start to finish. Colorado even goes so far as to make the disclosure of internal proceedings a crime, thereby discouraging the occasional crusader from exposing the process.91  Colorado Commission on Judicial Discipline executive director Rick Wehmhoefer concludes nearly all of his correspondence to complainants with this admonition: "Please be reminded that this matter is strictly confidential pursuant to Article VI, Section 23(3)(g), Colorado Constitution, and sections 24-72-401 and 402, Colorado Revised Statutes."92

     Professor Anthony D’Amato of Northwestern asserts that most judges seek appointments on the bench for the power and prestige, rather than the money93; former Colorado Supreme Court Justice Gregory Scott appears to agree.94  And if even one Father Geoghan could bring the entire Catholic priesthood into disrepute, judges have an obvious motive to conceal the crimes of their colleagues.  Prof. D’Amato explains:
No matter what the profession, any charge that a fellow professional is uilty of malpractice is a prima facie invitation to other professionals to retreat to a guild mentality, denying that the infraction took place. The impetus to cover up is not primarily due to friendship toward the accused but rather to a general perception that disclosure would lead to public disrespect of the profession as a whole . . . We perhaps demand too much of human nature if we expect judges to be unconcerned with the loss of public prestige that results from admitting that cases of serious judicial misconduct are not extraordinarily rare.95
    Whether it is called the “conspiracy of silence,” 96 the “blue wall of silence,”97 or even omerta,98 guilds have always had ways of keeping their dirty linen from public view.  It is thus unsurprising that not a single judge in Colorado has been disciplined by the Commission for almost a quarter-century.99

     It’s not that Colorado judges don’t commit malfeasance and even crimes on the bench, as was evidenced by the incident where Judges Gilbert Arends and Frank Martinez were caught signing fraudulent affidavits by a local television station.100  Rather, it is the collective desire by the bench and their servile handmaidens in the Bar to conceal the scope and extent of judicial malfeasance from the public eye that is behind this drive for strict secrecy.  In short, they want to be able to go to cocktail parties without being smirked at.

     When judges gain control over the process, “judicial discipline” as we know it ceases to exist.  The most pristine example of this is in the federal courts, where the judges who run their process dismiss about 99% of public complaints without investigation.101  Under federal law, cognizable misconduct is “conduct prejudicial to the effective and expeditious administration of the business of the courts,”102 including use of “the judge’s office to obtain special treatment for friends.”103  A complaint that merely calls a judge’s decision into question is unreviewable, but one alleging that a decision is the result of an improper motive can constitute misconduct.104  Moreover, a series of clearly erroneous decisions would constitute evidence of “a pattern or practice” of misconduct warranting review.105

    The bar here is a practical one: the contents of other complaints are kept strictly confidential.  If you don’t know that a judge has a habit of discriminating against plaintiffs in employment discrimination lawsuits (like Judge Nottingham), and can’t obtain ready access to other allegations of judicial misconduct, you are like the altar boy who has just been molested by Father Geoghan: You think you are alone, and no one is going to believe you.

     Again, the proof is in the pudding: Anne Gearan of the Associated Press reports that out of 766 complaints lodged against federal judges in one year, only one resulted in a penalty: a private censure.106  Accordingly, either there were no instances complained of where a judicial decision was motivated by improper considerations or none of the judicial councils bothered to investigate valid claims.  As the Federal Judicial Center estimated that 80% of complaints were dismissed on the ground that they were “related to the merits of a decision,”107 we can estimate the probability of the first hypothesis being true.     

     The Federal Judicial Center informs us that some 50% of complaints were deemed frivolous by the Councils108; this leaves us with 766 * .50 *.80 or 306 potentially meritorious complaints per year.  If we assume that even one in ten judicial decisions complained of was motivated by improper considerations, the odds of this occurring by pure random chance is (1-.10) 306,  or one in 100 trillion!  And that is just in a single year!   Accordingly, the only reasonable conclusion one can reach is that judicial councils have been deliberately turning a blind eye to malfeasance by their colleagues.


Appellate Courts Have Become Dysfunctional

     It is widely presumed by lawyers and laymen alike that whenever a judge makes a mistake, an appellate court can be relied upon to correct that error, thereby keeping him or her honest. Unfortunately, the empirical evidence suggests that this is no longer a credible assumption, as appellate judges routinely disregard their obligation to do marginally competent work.  It is an open secret among bench and bar that the bulk of their opinions -- which have no precedential value, and are decided in summary fashion -- is uniformly abysmal.  As one federal district court judge admitted in open court:
THE COURT: At a conference of the Third Circuit, the Court of Appeals defended their unpublished opinions on the ground that they’re not well reasoned, they don’t give them much thought. So it’s hard to say that that’s a well-reasoned opinion that has any precedential value.
MR. WINEBRAKE: Well, we concede—
THE COURT: It’s instructive on what they’ll do without much thought.109
      To the layman, the sloth our appellate judges display shocks the conscience.  Judge Kozinski of the Ninth Circuit publicly admitted that the panels in his circuit may issue 150 rulings per three-day session.110 But even they were slackers compared to the late Judge Richard Arnold, who confessed that he participated in a two-hour conference where a panel of appellate judges decided fifty appeals.111  A panel of auctioneers couldn’t debate the merits of an appeal in the two minutes it took Judge Arnold and his compatriots to decide the fortunes and even the lives of fifty of our fellow citizens; most of the true work of our appellate courts is done by fresh-faced kids right out of law school who earn about as much as an assistant manager at Wal-Mart.112

      The numbers don’t lie: The proportion of reversals among the total dispositions of the federal courts of appeals has declined markedly. In 1945, there was a reversal rate of 27.9 percent,113 but in 2005, that percentage had fallen to 10.2.114  Assuming a consistent level of competence among federal judges throughout the years, we can fairly deduce that roughly two of every three rulings handed down in 2005 which should have been overturned weren’t.  And as Judge Kleinfeld of the Ninth Circuit explains, it isn’t difficult to understand why:
[A] judge can and should do his own work. In those days, Justice Rabinowitz used to write his decisions out longhand with a fountain pen. Doris Wilken would type them up, and Bob Coates and I, his law clerks, would go over them for substantive and formal correctness. In two years as a law clerk, I can identify only one decision that I wrote. I don't think this reflected my deficiencies as a writer, because my predecessor and successor law clerks had the same experience. The practical effect of Justice Rabinowitz writing his own decisions was that he understood the details of his cases, grounded his decisions on the facts in the record, and caught errors which would have been missed had the writing been delegated after the result was determined.

These were good lessons. One of them, that a judge should do his own work, is now very much the minority position among state and federal judges. In most American appellate courts today, law clerks just out of law school, and even "externs" still in law school, write the decisions, and judges edit them. In some, judges neither read the briefs nor write the decisions - they just vote on outcomes based on staff memoranda and edit staff drafts.115
    At least at the federal level, many appellate judges are too busy writing paeans to themselves,116 officiating moot court competitions, 117 attending secret junkets offered by the Federalist Society, 118  giving personal interviews119 to promote their latest book,120 or hunting with people with business before their courts121 to attend to their day jobs.  Judge McConnell of the Tenth Circuit is so busy teaching law at not one but three universities122 that the federal bench scarcely qualifies as a part-time job. The prolific Judge Posner focuses most of his effort on writing books, as the authorship of books is not included in limits on the outside income of federal judges.  Indeed, to hear Judge Posner tell it, it is remarkable that federal appellate judges show up to work at all:
A federal judge can be lazy, lack judicial temperament, mistreat his staff, berate without reason the lawyers and litigants who appear before him, be reprimanded for ethical lapses, verge on or even slide into senility, be continually reversed for elementary legal mistakes, hold under advisement for years cases that could be decided perfectly well in days or weeks, leak confidential information to the press, pursue a nakedly political agenda, and misbehave in other ways that might get even a tenured civil servant or university professor fired; he will retain his office.123
     As Posner admits, “judges can conceal the role of personal preferences in their decisions by stating the facts selectively so that the outcome seems to follow inevitably or by taking liberties with precedents."124  Famed legal luminary Karl Llewellyn is more direct: “Such action leaves the particular point moderately clear: the court has wanted [the result] badly enough to lie to get it.”125  Addressing messy legal issues and writing formal decisions are time-consuming processes, and most judges became judges because they crave power and leisure time.  The bottom line is that trial judges don’t have to follow the law and even if they don’t, their colleagues are either unwilling or unable to force them to.

     At the end of the day, the problem is much as Justice Breyer described it: "half the country thinks judges decide cases any way they want."  And that half of the country is right.


The Solution: Judicial Accountability to Individual Litigants

     Abraham Lincoln once quipped, “[n]early all men can stand adversity, but if you want to test a man's character, give him power.”  Our Founding Fathers built a nation and system of government on the proposition that no one could be trusted with power, and our nation’s judiciary has vindicated their wisdom once again. Power minus accountability equals tyranny, and if a judge knows that she will be held to account for her actions, she will act in a more restrained manner.

     Our judges insist that they need this freedom, so they can make bold decisions in defense of individual liberties without fear of reprisal.  But in the real world, this is a bit like paying Tony Soprano ‘protection money’ to ensure that bad things don’t happen to you.  Professor Abimbola Olowofoyeku of London’s Brunel University distills it to essentials:
You have been injured by the misconduct of a judge. We have to deny you redress. This is necessary because we have to protect your interests by protecting the judges, so that they in turn can protect your interests without fear of apprehension.126
     In short, excessive judicial independence defeats the purpose of having independent judges in the first place.  When a judge can arbitrarily refuse to enforce your rights and leave you bereft of recourse, you don’t have them, for to “take away all remedy for the enforcement of a right is to take away the right itself.”127 On the other hand, we ought to fear “telephone justice,” or judges being placed in office on the basis of how they will rule on a given case when it gets to their chambers.  For a judge to do his job, he must be free from the pressure of the mob.

     The English devised an elegant solution to this problem: a grant of so-called “good behavior” tenure to appointed judges.  Under this scheme, any aggrieved citizen could remove a judge from office for good cause -- abuse of office, nonuse of office, and a refusal to exercise an office128 -- upon a trial on the merits.  Thereunder, if a judge decided to vent his spleen on a defenseless litigant, that litigant could return the favor.  This scheme kept English judges independent from the influence of the King, but kept them accountable enough to the litigants they served that they would be discouraged from becoming petty tyrants.

     The first rule of auditing is that the customer complaint is a powerful internal control.  Just as the grocery store customer is bound to complain if the cashier short-changes him, the loser in a lawsuit will be highly motivated to take remedial action against a judge who treated him unfairly.  By contrast, a corrupt judicial discipline commission or disinterested electorate is unlikely to act to remedy individual injustices, as the empirical evidence shows.

     The obvious concern -- that this remedy will be over-used -- will be naturally controlled by a number of factors.  First and foremost, if a judge knows that he could lose his office if he abused his position, he is less likely to indulge; the same internal control which keeps the grocery clerk from emptying the cash drawer into his pocket will tend to produce better courts.  Second is the fact that only acts of willful misconduct qualify as good cause; the judge who makes an honest mistake in good faith can expect to have it corrected upon appeal, as appellate judges will also be subject to the same threat of expulsion.  As the standards for the imposition of judicial discipline are substantially the same in many jurisdictions,129 the only difference is that, if their victims have the power to enforce them, they will be enforced.

    This scheme goes a long way toward solving the twin problems of willful judicial misconduct and appellate sloth.  But while it may solve some issues at the margins, neither system of judicial selection can fix the persistent problem of judges making discretionary decisions in a partisan manner, even as retrofitted.  However, if anyone ever does want to get serious about addressing it -- in substance, as opposed to mere cant -- a simple and viable solution is offered by über-trial lawyer Gerry Spence: draft judges at random from a pool of qualified candidates to serve non-renewable five-year terms.  By taking the selection power out of everyone’s hands, our courts couldn’t be consciously packed with liberals, conservatives, or former prosecuors biased toward fellow prosecutors. 

    To those who would suggest that a ‘judicial draft’ might be unfair to those attorneys drafted, it is no different in substance from a military draft.  Just as an obligation to enter military service is one of the hazards of citizenship, the proposed ‘judicial draft’ can be construed as one of the hazards of Bar membership.  Further, those who would suggest that the quality of judging might decline precipitously under this system should keep the example of Judge Nottingham in mind.

    No system of judicial selection will ever be perfect, but few could be worse than the wretched ones we now have.



        


Endnotes
_____________________

¤ Copyright 2008 Kenneth L. Smith, J.D., M.S., C.P.A.  Where there are differences between this version and the PDF version, the latter is authoritative.
1 Ugly Court Race Shows Changes Needed, Wisinfo.com (Gannett Newspapers), Apr. 6, 2008, available at http://www.wisinfo.com/apps/pbcs.dll/article?AID=2008804060447.
2 Bill Mears, Big Money, Nasty Ads Highlight Wisconsin Judicial Race, CNN.com, Mar. 31, 2008, available at http://www.cnn.com/2008/POLITICS/03/31/wisconsin.judicial.race/index.html.
3 Scott Bauer, Critics Decry Supreme Court Race, Wisconsin State Journal (Associated Press), Apr. 2, 2008, at http://www.madison.com/wsj/home/local/280066.
4 Id.
5 Erase Supreme Court Elections, Start Anew, Wausau Daily Herald, Apr. 6, 2008, available at http://www.wausaudailyherald.com/apps/pbcs.dll/article?AID=/20080406/WDH06/804060335
6 536 U.S. 765 (2002) (Rehnquist, Scalia, Thomas, O’Connor, and Kennedy voted in the majority).
7 E.g., Sandra Day O’Connor, Justice for Sale: How Special-Interest Money Threatens the Integrity of Our Courts, Wall Street Journal, Nov. 15, 2007, available at http://www.opinionjournal.com/editorial/feature.html?id=110010864.
8 Robert Post & Reva Siegel, Questioning Justice: Law and Politics in Judicial Confirmation Hearings, 115 Yale L. J. 38, 38 (2006).
9 In re Ross, 428 A.2d 858, 861 (Me. 1981) (emphasis added)
10 Mercifully, there is no need to open the partisan wounds inflicted by Roe v. Wade, 410 U.S. 113 (1973) and Bush v. Gore, 531 U.S. 98 (2000) to illustrate this point.  Perhaps the most pristine example of judicial activism in history came in the relatively obscure case of Pierson v. Ray, 386 U.S. 547 (1967), wherein the Supreme Court declared that “any person” really meant “any person but us judges.”
     In Pierson, a group of Negro civil rights activists tried to hold the judge personally accountable for incarcerating them for their lawful petitioning activity.  Ignoring the plain meaning of the statute (the ubiquitous Section 1983), the legislative history, and every canon of statutory interpretation then known to law, the Court declared that state judges could not be held liable for even willful misconduct conducted within the ordinary scope of their judicial duties.  
     As applied to the case, the statute was clear and as unambiguous as any statute any legislator could hope to write: "Every person [who does X to Y is liable to Y in tort]." Had Congress intended to exempt state judges, it would have said something to the effect that "This section shall not apply to judges."  Moreover, it is a remedial statute, which is supposed to be interpreted liberally to serve its intended purpose -- a rule the Court relied on in an opinion issued the very day beforehand.  State Farm Ins. Co. v. Tashire, 386 U.S. 523 (1967).  But judges don’t like the idea of people suing fellow judges, and courts have a habit of fracturing the law to protect their colleagues.
     Chief Justice Warren justified his decision by claiming that "[t]he legislative record gives no clear indication that Congress meant to abolish wholesale all common-law immunities." Pierson, 386 U.S. at 554.  This begs the question as to why Congress should have to, as law made "under the Authority of the United States, shall be the supreme Law of the Land," U.S. Const. art. VI, cl. 2, and drafters of present-day Section 1983 lived in a time when Congress wrote laws to remedy "defects" in the common law.  Munn v. Illinois, 94 U.S. 113, 134 (1876).  Pierson was so profoundly irrational that the only reasonable inference is that it was a case of judges rewriting laws they didn’t like.
11 Sandra Day O’Connor, “The Importance of Judicial Independence” (speech before the Arab Judicial Forum, Manama, Bahrain), Sept. 15, 2003, transcript at http://usinfo.state.gov/journals/itdhr/0304/ijde/oconnor.htm.
12 Dirk Olin, Judicial Abacus, Judicial Reports (Blog: Inst. For Judicial Studies), Apr. 9, 2008, at http://www.judicialreports.com/2008/04/judicial_abacus.php. New York’s Fordham School of Law has not released official transcripts or videos of this event as of this writing.
13 The Framers of our Constitution envisioned judges as interpreters of the law, as opposed to its (self-appointed) authors. Alexander Hamilton explained that to “avoid an arbitrary discretion in the courts, it is indispensable that [judges] should be bound by strict rules and precedents, which serve to define and point out their duty in every particular case before them.” The Federalist No. 78. Blackstone observed that a judge’s duty to follow precedent was derived from the nature of the judicial power itself: a judge is “sworn to determine, not according to his own judgments, but according to the known laws.” 1 Blackstone, Commentaries on the Laws of England 69 (1765). A century earlier, Lord Coke wrote, “[i]t is the function of a judge not to make, but to declare the law, according to the golden mete-wand of the law and not by the crooked cord of discretion.” 1 Coke, Institutes of the Laws of England 51 (1642). As in all but the most exotic cases, the law has been clearly established, the judge is expected to be little more than an administrator, playing what Professor Llewellyn called “the game of matching cases.” Karl Llewellyn, The Bramble Bush 49 (1960).
14 George W. Bush, State of the Union (Jan. 28, 2008).
15 28 U.S.C. § 453.
16 Robert H. Bork, The End of Democracy? Our Judicial Oligarchy, 67 First Things 21, 21 (Nov. 1996), available at http://www.firstthings.com/article.php3?id_article=3946.
17 Robert H. Bork, Coercing Virtue: The Worldwide Rule of Judges (New York: AEI Press, 2003), at 13.
18 Richard Posner, How Judges Think (Cambridge, Mass: Harvard U. Press, 2008) at 1
19 Deborah Merritt & James Brudney, Stalking Secret Law: What Predicts Publication in the United States Court of Appeals, 54 Vand. L.R. 71, 116 (2001) (statistical analysis of unpublished appeals of Dept. of Labor administrative rulings shows consistent bias attributable to the judges’ presumed political persuasion).
20 E.g., Palm Beach County Canvassing Board v. Harris, 772 So.2d 1220 (Fla. 2000) (Democrats); Gore v. Harris, 772 So.2d 1243 (Fla. 2000) (Democrats); Bush v. Gore, 531 U.S. 98 (2000) (Republicans), New Jersey Democratic Party, Inc. v. Samson, No. A-24 September Term 2002 (N.J. 2002) (allowing Democrats to replace scandal-plagued incumbent Sen. Robert Torricelli on the ballot with then former-Sen. Frank Lautenberg). People ex rel. Salazar v. Davidson, 79 P.3d 1221 (Colo. 2003) (Democrats thwart Republican redistricting effort).
21 Pl.’s Mot. For Recusal of Judge Nottingham Pursuant to 28 U.S.C. §144 and §455(a) and (b)(1) [Dkt. #59], Phillips v. Pepsi Bottling Group, No. 05-cv-01322-EWN-KLM (filed Nov. 1, 2007) at 2, reprinted at http://knowyourcourts.com/Nottingham/2007-11-01_StephenPhillipsRecusalMotion.pdf.
22 Order and Memorandum of Decision, Phillips, supra, n. 21, No. 05-cv-01322-EWN-KLM (filed Nov. 13, 2007), slip op. at 9-10 (citations omitted; emphasis added).
23 Fed. R. EvId. 801(d)(2)(D) (It is a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, which is being offered against the judge).
24 See, http://www.knowyourcourts.com/Nottingham/Nottingham.htm for a collection of stories on the judge.
25 John Andrews, Impeach Judge Nottingham, Townhall.com, Apr. 5, 2008, at http://www.townhall.com/columnists/JohnAndrews/2008/04/05/impeach_judge_nottingham.
26 Associated Press, Federal Judge Issues Statement On Visits To Strip Club, Aug. 11, 2007, reprinted at http://www.knowyourcourts.com/Nottingham/2007-08-11_NottinghamIssuesStatement-onVisits-toStripClubs.pdf
27 Felisa Cardona, Nottingham Is Being Viewed from Both Sides, The Denver Post, Apr. 1, 2008, available at http://www.denverpost.com/ci_8763665 (John Holcomb, professor of legal studies at the University of Denver, said "Nottingham tends to be toughest on employment-law plaintiffs").
28 E.g., New Details About Judge Nottingham Emerge from Interview with Retired Attorney, KnowYourCourts.com, Mar. 22, 2008, http://www.knowyourcourts.com/News/news.htm (refusal to enter a jury verdict because he didn’t like the precedent it would set). The plaintiff filed an ethics complaint against Judge Nottingham, which was summarily (and, capriciously) dismissed. See http://www.knowyourcourts.com/Nottingham/92-10-372-07.htm for the complaint, its disposition, and Judge Nottingham’s explanation for his actions. It is one of the rare cases where a judge actually explains his actions to the Council.
29 Carr v. Morgan County Sch. Dist. RE3, No. 06–cv–01006–EWN–MJW (D. Colo. Jul. 9, 2007), slip op. at 17. A federal judge is expected to be "patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity." Code of Conduct for United States Judges, Canon 3A.(3).
30 The Tenth Circuit opinion states, in pertinent part:
From July 2000 to November 2002, Dr. Steiner, a Colorado physician, was employed by Concentra Inc., a medical-care provider that contracts with corporate customers to deliver medical services to the customers' employees. During her tenure with Concentra, Dr. Steiner perceived ethical problems in the Concentracustomer relationships; deficiencies in the treatment of patients; illegalities in the release of patients' medical records to customers; racial, ethnic, age, and gender discrimination against Concentra employees; and the existence of mold in a Denver clinic. She expressed her concerns to Concentra managers, colleagues, patients, patients' family members, and customers.Dr. Steiner was demoted from her position as medical director of a Concentra clinic and then discharged. She filed with the EEOC claims of retaliatory and discriminatory discharge.
Steiner v. Concentra, Inc., No. 05-1496 (10th Cir. Aug. 31, 2006), slip op. (unpaginated).

31 Felisa Cardona, Feds Grill Nacchio Judge's Ex-Wife, Denver Post, Aug. 14, 2007, at http://www.denverpost.com/commented/ci_6598184 [NewsBank link].
32 According to one of his childhood friends, who has asked that his name not be used in connection with this story, Avon’s Nottingham Lake is named for his family.
33 Richard Posner, Judicial Behavior and Performance: An Economic Approach, 32 Fla. St. L. Rev. 1259, 1270 (2005), available at http://www.law.fsu.edu/journals/lawreview/downloads/324/Posner.pdf.
34 Dorothy Samuels, The Selling of the Judiciary: Campaign Cash ‘In the Courtroom’, New York Times, Apr. 15, 2008, available at http://www.nytimes.com/2008/04/15/opinion/15tues4.html?ex=1365998400&en=f52d48761cee0-0f2&ei=5124&partner=permalink&exprod=permalink
35 Nonpartisan Court Plan, at http://www.courts.mo.gov/page.asp?id=297 (official website for the State of Missouri; visited Apr. 28, 2008).
36 G. Alan Tarr, Designing an Appointive System: The Key Issues, 34 Fordham Urb. L. J. 292, 292-93 (2007), available at http://law.fordham.edu/publications/articles/400flspub8521.pdf.
37 Running for Judge: The Rising Political, Financial, and Legal Stakes of Judicial Elections, Matthew J. Streb, ed. (New York: NYU Press, 2007) at 1-2, available at http://www.nyupress.org/webchapters/0814740340chapt1.pdf
38 See e.g., Roger K. Warren, State Judicial Elections: The Politization of America’s Courts, Administrative Office of the Courts, Judicial Council of California at 10, available at http://www.courtinfo.ca.gov/jc/documents/State_Jud_Elections_Warren.pdf (“Colorado evangelist James Dobson is credited with the defeat of South Dakota’s merit selection ballot initiative in 2004 and the near defeat of an Iowa trial judge over his settlement of a property dispute involving a lesbian couple.”).
39 E.g., Iowans Concerned about Judges, 2006 Judicial Voters’ Guide Questionnaire for Judicial Candidates, at http://www.iowajudges.org/doc/Survey.pdf.
40 Iowans Concerned about Judges (website), at http://iowajudges.org/index.html.
41 In a delicious irony, by signing on to this opinion, the same Justice Clarence Thomas who was widely criticized as being "unqualified" for ascension to the Court, Neil A. Lewis, Bar Association Splits on Fitness Of Thomas for the Supreme Court, New York Times, Aug. 28, 1991, available at http://query.nytimes.com/gst/fullpage.html?res=9D0CE4D81539F93BA1575BC0A967958260, and had claimed to never have recalled discussing Roe v. Wade (to say nothing of developing a preconceived view on it) during his confirmation hearings, Clarence Thomas on Abortion (webpage), On The Issues.org, at http://www.ontheissues.org/Court/Clarence_Thomas_Abortion.htm, endorsed that view, thereby branding himself as either an inveterate liar who committed perjury to attain his seat on the Court, or vindicating his critics.
42 State supreme court justices are chosen by gubernatorial appointment in California, Patricia Lynn Henley, Judicial Review: Everything You Never Wanted To Know--But Should--About the California Supreme Court, MetroActive, Oct. 18-24, 2006, available at http://www.metroactive.com/bohemian/10.18.06/california-supreme-court-0642.html,  and Maine, and by legislative appointment in South Carolina and Virginia. Judicial Selection in the States, American Judicature Society and The Institute for the Advancement of the American Legal System (joint report) (2008) at 7, available upon request from the Institute at  http://www.du.edu/legalinstitute/ (copy on file).  These hybrid systems are substantially similar to the federal regime, and subject to the same flaws.  Illinois’ system is unique, in the sense that judicial candidates must be chosen by the people in contested elections but thereafter, must stand for retention.   Don Craven, Illinois State Bar Association Media Law Handbook (unpaginated on-line version), Ch. 1, available at http://www.isba.org/newscenter/medialawhandbook/CHAPTER%2001%20-%20The%20Illinois%20Courts%20System.pdf.  While all selection systems are different, the rest can be comfortably classified as Missouri Plan states or election-based states.
43 Appointment-based states chosen: AK, AZ, CO, FL, IA, KY, MO, NE, NH, NM, TN, WY, UT.  Election-based states chosen: AL, IL, MI, MN, NV, OR, TX (civil), WA, WI.  Wyoming’s nomination commission showed a clear bias toward homegrown judicial talent, with all five judges graduating from its only school of law.  Wyoming Supreme Court, Wyoming Judicial Branch (website), http://www.courts.state.wy.us/SupremeCourtJustices.aspx.  Nine of seventy-seven appointed justices were Ivy League law school graduates, but only three of seventy-three elected ones were.   Over half of the elected justices (41/66, with Nevada excluded because until quite recently, it did not have its own law school) went to law school in their own state.   .
44 See, e.g., Daniel J. Meador, Some Yins and Yangs of Our Judicial System, 66 A.B.A. J. 122, 122 (1980) ("The process of picking a person to be a judge is woven into the political fabric and is, by any definition, a political process.") (quoted in Peter D. Webster, Selection and Retention of Judges: Is There One 'Best' Method?, 23 Fla. St. U. L. Rev. 1, 3 n. 4 (1995)); Richard Neely, Why Courts Don't Work 41, Houghton Mifflin, 1980 ("In every state a judge needs to be some kind of politician");  Michael J. Gerhardt, The Federal Appointments Process: A Constitutional and Historical Analysis (Durham: Duke University Press, 2003). 
45 The applicable cases are cited at n. 20, supra. 
46 Colo. Const. art. VI, § 24(4) (at present, Colorado has seven Congressional districts).
47 Larry Aspin, Judicial Election Retention Trends, 1964-2006, 90-5 Judicature 207, 210 (Mar.-Apr. 2007), http://www.ajs.org/ajs/publications/Judicature_PDFs/905/aspin_905.pdf. (Judicature is the mouth organ of the American Judicature Society, the primary 'culprit' behind this movement.)
48 Recommendations for Judicial Retention, Colorado Commissions on Judicial Performance (2006), available at http://www.cojudicialperformance.com/retentionlist.cfm?year=2006#sup.
49 Recommendations for Judicial Retention, Colorado Commissions on Judicial Performance (2000) (10th Judicial Dist. Judge Ernest J. Ruybalid), reprinted at http://www.cobar.org/static/judges/nov2000/10CNTYeruybalid.htm.
50 Recommendations for Judicial Retention, Colorado Commissions on Judicial Performance (2000) (10th Judicial  Dist. Judge Adele K. Anderson), reprinted at http://www.cobar.org/static/judges/nov2000/10CNTYaanderson.htm.  
51Colorado Judicial Branch, Pueblo County Judge Adele Anderson to Retire, Oct. 18, 2007, at http://www.courts.state.co.us/exec/media/vacancy/2007/2007-10-18%20pueblo%20county%20vacancy%20final%20pr.pdf. 
52 See generally, John Andrews, Judges Coddled By Sweetheart Process, Denver Post, Feb. 18, 2007, available at http://www.denverpost.com/opinion/ci_5237573.
53 Lynn Marks (Executive Dir., Pennsylvanians for Modern Courts), Adopt Merit Selection for Judges, Philadelphia Inquirer, Apr. 28, 2008, available at http://www.philly.com/inquirer/opinion/pa/20080428_Adopt_merit_selection_for_judges.html.
54 Statewide Coalition, Lawmakers Announce Effort to Reform Minnesota's Judicial Selection System, Reuters, Jan. 31, 2008, available at http://www.reuters.com/article/pressRelease/idUS209438+31-Jan-2008+PRN20080131.
55 Carri Geer Thevenot, Nevada’s Judicial System: Panel Holds Off On Plan For Judges, Las Vegas Review-Journal, Nov. 29, 2007, available at http://www.lvrj.com/news/11911541.html.
56 Warren, supra n. 38 at 10.
57 See, Charlie Shields, Bill to Keep Judicial Selection Open and Honest Discussed by Senate Panel (press release), Feb. 12, 2008, at http://www.senate.mo.gov/08info/members/newsrel/d34/021208.pdf. Shields, a Republican state senator, sponsored a bill to require the Commission’s deliberations to be done in public.
58 Brian T. Fitzpatrick, Verdict On Tennessee Plan May Require a Jury, Memphis Commercial Appeal, Apr. 16, 2008, available at http://www.commercialappeal.com/news/2008/Apr/16/guest-column-verdict-on-tennessee-plan-may-a/
59 See e.g., Jay Horowitz, Verdict On Judicial Term Limits: They're Good For All Concerned, Rocky Mountain News, Oct. 14, 2006 (re: Colorado’s Amendment 40, which garnered 43% of the vote).
60 “It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation,” Colo. R.P.C. 8.4(c), but evidently, it is permissible for political operatives to do it on your behalf.
61 Paul Chan, Vote No 40 Recap, The Docket (Denver Bar Assn.), Dec. 2006, available at http://www.denbar.org/docket/doc_articles.cfm?ArticleID=4882.
62 Posted at http://www.jail4judges.org/state_chapters/ca/Initiative/CaliforniaJAILInitiative.htm.
63 Matt Belanger, KELO-TV Poll: Judicial Accountability, KELO-TV (Sioux Falls, SD), Nov. 4, 2006, available at http://www.keloland.com/newsdetail6162.cfm?id=0,52205.
64 Roger J. Miner, Judicial Ethics In the Twenty-First Century: Tracing the Trends, 32 Hofstra L. Rev. 1107, 1108 (2004) (emphasis added).
65 Wisconsin Judicial Commission (website), http://www.wicourts.gov/about/committees/judicialcommission/index.htm (emphasis added) (visited May 2, 2008; copy on file).
66 Judicial Conduct Panel’s Findings Of Fact, Conclusions Of Law, and Recommendations, In re Ziegler, No. 2007AP2066-J (Wis. Jan. 3, 2008).
67 Id. at 10.
68 Id. at 19.
69 Id. at 21 (emphasis added).
70 Bruce L. Benson, An Institutional Explanation for Corruption of Criminal Justice Officials, 8 Cato Journal 139, 150-51 (Spring/Summer 1988), available at http://www.cato.org/pubs/journal/cj8n1/cj8n1-9.pdf.
71 Archived stories available at http://www.leoaffairs.com/media/public_corruption/050804%20TBO%20News%20-%20Colleague%20Lied%20About%20Clique,%20Former%20Chief%20Judge%20Writes.htm.
72 Christopher Goffard, “Judge Who Was Accuser Is Accused,” St. Petersburg Times, May 10, 2004, available at http://www.sptimes.com/2004/05/10/news_pf/Hillsborough/Judge_who_was_accuser.shtml.
73 Readers not old enough to remember the Watergate affair should take the time to visit http://www.watergate.info/.
74 Charles Taylor, A Pedophile’s Accomplice?, Salon.com, Mar. 7, 2002, at http://dir.salon.com/story/news/feature-/2002/03/07/law/ (re: revelation that Bernard Cardinal Law knew about Father John Geoghan’s serial sexual abuse of altar boys, but covered for him).
75 Gregory P. Holder, Judicial Biography, available at http://www.fljud13.org/pdfs/bios/holder_bio.pdf.
76 See Inquiry Concerning a Judge, re: Gregory P. Holder, No. SC03-1171 (Fla. Dec. 7, 2006) (per curiam), available at http://www.law.fsu.edu/library/flsupct/sc03-1171/op-sc03-1171-corrected.pdf.
77 Karen Abbott, “FBI Settles Judge’s Case,” Rocky Mountain News, Apr. 27, 2004, available at [see PDF file].
78 Ronald D. Rotunda, The Courts Need This Watchdog, Washington Post, Dec. 21, 2006 at A-29 (emphasis added), available at http://www.washingtonpost.com/wp-dyn/content/article/2006/12/20/AR2006122001329.html.
79 United States v. Murphy, 768 F.2d 1518, 1531 (7th Cir. 1985).
80 Murphy, 768 F.2d at 1525.
81 Kathy Jessup, Judge’s Removal Sought, South Bend Tribune, May 1, 2004.
82 In re the Hon. Thomas S. Gilbert, Case No. 02-14294 (Mich. Judicial Tenure Comm. Sept. 25, 2003), reprinted at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=mi&vol=supreme%5C092503%5C20479&invol=2.
83 Maureen Feighan, Scathing Report Says Judge Should Go, Detroit News, Mar. 20, 2003, [NewsBank link].
84 Gene Schabath, Judges Embroiled in Scandals: Jurists Are Linked To Five Macomb Sex-related Cases, Detroit News, Sept. 2, 1999 [NewsBank link].  The lurid tale of Judge Susan Chrzanowski and her attorney-lover is told in depth on-line:

Nearly nine months had passed since Leann Fletcher was killed and most of the work on her case was taking place on paper via judicial pleadings. As expected, the local dailies, the Detroit News, the Free Press and the Oakland Press had a field day with Judge Susan Chrzanowski. She had been compelled to testify during Mick Fletcher's preliminary hearing, admitting that she and Mick had had sex the night before he allegedly killed his wife—the same night he had gone to dinner with her family to share the joyful news about Leann's pregnancy. Love letters written by Fletcher to his paramour were fought over in the courtroom and their contents revealed to the public. In the end the judge ruled the letters, with such sweet nothings as "keep that chin up, pretty lady" and "you are a creature of true beauty" and photographs of Susan and Mick together were admissible evidence. The newspaper columnists howled for Susan's head, neglecting to mention that beyond her duties as a judge, she was active in YMCA and church camps, had one of the most progressive probation departments in the state and was a champion of children's causes. No, to them she was a woman without morals who was an unindicted coconspirator in Leann Fletcher's murder.

Mark Gribben, Michael Fletcher: A Simple Case Of Murder, The Crime Library (story undated), http://www.crimelibrary.com/notorious_murders/family/fletcher/.
     Judge Scandarito, who was accused by four women of sexual misconduct in office, resigned his office and moved to Florida. Hawke Fracassa, Police Join FBI Probe Of Ex-Judge: Scandirito Retired Without Answering Misconduct Charges, Detroit News, Feb. 25, 2000 [NewsBank link].  .  But that wasn’t the end of the story.  He moved to Florida, conveniently failing to tell Florida authorities (or his employer) that he had been disbarred.  Kathleen Chapman, DCF Had Disbarred Mich. Judge As Lawyer, Palm Beach Post, Jan. 16, 2003 [NewsBank link].  What’s more, one of his colleagues on the bench gave him a “glowing” character reference, conveniently failing to mention his status as a sexual predator.  Mike Wowk, Job References For Ex-Macomb Judge Assailed, Detroit News, Jan. 23, 2003. [NewsBank link]   
85 E.g., David Shepardson, Judge is Accused of Indecent Act, Detroit News, Jul. 31, 2001 [NewsBank link], (official discipline report available at http://www.michbar.org/opinions/supreme/2002/071502/15672.html).
86 Alex Ginsburg, How To Buy A Gavel, New York Post, Jan. 30, 2007, available at http://www.nypost.com/seven/01302007/news/regionalnews/how_to_buy_a_gavel_regionalnews_alex_ginsberg.htm; see generally, Patronage: A Feast for Lawyers, Citizens for Judicial Accountability, http://www.judicialaccountability.org/patronage.htm.
87 Joel Stashenko,  NY Judges Officially Bounced From Bench, New York Lawyer,  Mar. 19, 2008, reprinted at http://www.judicialaccountability.org/articles/judgemoneylaunderer.htm.
88 Chamber Of Secrets: A Pregnant Mother Goes Undercover To Keep Custody Of Her Children, 48 Hours (newsmagazine), Feb. 18, 2005, available at http://www.cbsnews.com/stories/2005/02/18/48hours/main674950.shtml; See also, William K. Rashbaum, Judge Accused Of Taking $18,000 Bribe, New York Times, Jan. 23, 2002, available at http://query.nytimes.com/gst/fullpage.html?res=9C06E0DA103BF930A15752C0A9649C8B63 (separate incident).
89 In re Brooks, California Comm. On Judicial Performance (no citation on order), Apr. 8, 2008, available at http://www.cjp.ca.gov/PubAdm/Brooks%20JM%204-8-08.pdf .
90 Ivan Moreno, Judges' Conduct: A Veil Of Secrecy, Rocky Mountain News, Jun. 18, 2007, reprinted at http://www.knowyourcourts.com/JDC/docs/JudgesConduct-aVeil-ofSecrecy.pdf.
91 In pertinent part, Colo. Rev. Stat. §§ 24-72-401 provides: “The record shall be confidential and shall remain confidential after filing with the supreme court.”
92 See generally, Colorado's Commission on Judicial Discipline, KnowYourCOurts.com, http://www.knowyourcourts.com/JDC/JDC.htm for samples of correspondence.  While the statutory scheme provides for confidentiality, it only binds members of the Commission and their employees and agents:
Any member of the commission, any master appointed by the supreme court, or anyone providing assistance to such commission or such masters who willfully and knowingly discloses the contents of any paper filed with, or any proceeding before, such commission or such masters, or willfully and knowingly discloses the contents of any recommendation of the commission before such recommendation is filed with the supreme court is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than five hundred dollars.

Colo. Rev. Stat. §§ 24-72-402.
93  Anthony D’Amato, Self-Regulation of Judicial Misconduct Could be Mis-Regulation, 89 Mich. L.R. 609, 609 (1990) available at http://anthonydamato.law.northwestern.edu/Adobefiles/A90n.pdf (“Given the low salaries society gives to judges….”).
94  Karen Abbott, State’s First Black Justice To Leave Supreme Court, Rocky Mountain News, Mar. 7, 2000 at 7A (it’s hard to find qualified Supreme Court justices “because of the low pay”).
95  D’Amato, Self-Regulation, supra n. 93 at 609-10.
96  See, e.g., Trull v. Long, 621 So.2d 1278 (Ala. 1993), and law review articles cited therein.
97  See, e.g., Barry v. New York City Police Dept., Case No. 01 Civ. 10267 at 12-13 (S.D.N.Y. Apr. 6, 2004) (Loislaw.com, Federal Dist. Ct) (unofficial policy to punish whistleblowers); see generally, Serpico Resurrects His Decades-Old Criticism of NYPD,” CNN, Sept. 23, 1997, available at http://www.cnn.com/US/9709/23/serpico.brutality/ (visited Apr. 11, 2004) (famed NYPD whistleblower Frank Serpico, others discuss rampant corruption in NYPD).
98 See, e.g,, Garafalo v. Gravano, 23 F.Supp.2d 279, 280 (E.D.N.Y. 1998) (crime family members “take an oath of ‘omerta’ -- silence -- and with a picture of a saint set afire in the palm of their hands, intone that they shall burn like that saint if they violate that oath.”  This oath requires obedience to the Boss, including not harming other members of organized crime without express permission from the Boss.) 
99 Moreno, supra n. 90.
100 Tony Kovaleski, “Judges Admit To Signing Inaccurate Affidavits,” TheDenverChannel.com, story aired Nov. 13,
2002, reprinted at http://www.knowyourcourts.com/News/Judges-admit-signing-Inaccurate-Affidavits_Denver-Channel.htm.
101 Tony Mauro, Binding National Rules Adopted for Handling Judicial Misconduct Complaints, Legal Times, Mar. 12, 2008, available at http://www.law.com/jsp/article.jsp?id=1205232267963. 
102 28 U.S.C. § 351(a). 
103 Rules for Judicial-Conduct and Judicial-Disability Proceedings, Judicial Conference Cmte. On Judicial Conduct and Dissability, adopted Mar. 11, 2008, available at http://www.uscourts.gov/library/judicialmisconduct/jud_conduct_and_disability_308_app_B_rev.pdf (hereinafter, “the Rules”).
104 In re Charge of Judicial Misconduct No. 2006-10-372-40 (10th Cir. Judicial Council 2007) at 2, reprinted at http://www.knowyourcourts.com/Smith/06-10-372-40/2007-01-04_order-ofDismissal-ofJudicialMisconductComplaint.pdf.  
105 In re Charge of Judicial Misconduct No. 2008-10-372-06 (10th Cir. Judicial Council 2008) at 2, reprinted at http://www.knowyourcourts.com/Harrington/08-10-372-06/2008-03-10_order-ofPartialDismissal.pdf.
106  Anne Gearan, “Judges Escape Ethical Punishment,” Associated Press, Aug. 6, 2002, reprinted at http://www.judicialaccountability.org/articles/judgeesccapeethi.htm.
107  Jeffrey N. Barr and Thomas E. Willging, Statement of Allegations and Reasons in Chief Judge Dismissal Orders Under the Judicial Conduct and Disability Act of 1980: A Report to the Subcommittee on Courts, the Internet, and Intellectual Property Committee on the Judiciary, United States House of Representatives (Federal Judicial Center, May, 2002) at 8, available at http://www.fjc.gov/library, copy on file)
108   Id.
109  Sarah Ricks, The Perils of Unpublished Non-Precedential Federal Appellate Opinions: A Case Study of the Substantive Due Process State-Created Danger Doctrine in One Circuit, 81 Wash. L. Rev. 217, 269 (2006) (emphasis added).
110 Alex Kozinski, Letter (to Judge Samuel A. Alito, Jr.), Jan. 16, 2004 at 5. 
111  Perfunctory Justice: Overloaded Federal Judges Increasingly are Resorting to One-Word Rulings, Des Moines Register, March 26, 1999, at 12. 
112  Law Clerk Employment Information, Federal Law Clerk Information System (website), Jun. 26, 2007, at https://lawclerks.ao.uscourts.gov/employinfo.htm (Salaries for federal law clerks start at $46,974 per year); assistant managers at Wal-Mart are widely reputed to earn between $40,000 and $60,000.
113 See Dir. of the Admin. Off. of U.S. Cts., Ann. Report 70 tbl.B1 (1945).
114 See Admin. Off. Of U.S. Cts., Federal Judicial Caseload Statistics 29 tbl.B-5 (2005).
115 Andrew J. Kleinfeld, Tribute to Judge Rabinowitz, 15 Alaska L. Rev. 197, 199 (1998) (emphasis added),available at http://www.law.duke.edu/shell/cite.pl?15+Alaska+L.+Rev.+197.
116 E.g., Clarence Thomas, "My Grandfather's Son": A Memoir (New York: HarperCollins 2007).
117 Jessica Martin, Students Argue Before Chief Justice Roberts, The Record (Washington U. in St. Louis) Feb. 15, 2007, available at http://record.wustl.edu/news/page/normal/8747.html,
118 E.g., Brian Ross, Supreme Ethics Problem?, ABC News (Jan. 23, 2006), available at http://abcnews.go.com/Nightline/Investigation/story?id=1534260.
119 Justice Scalia On The Record, 60 Minutes (newsmagazine), Apr. 27, 2008, video at http://www.cbsnews.com/stories/2008/04/24/60minutes/main4040290.shtml.
120 Nina Totenberg, Justice Scalia, the Great Dissenter, Opens Up, National Public Radio, Apr. 28, 2008, audio at http://www.npr.org/templates/story/story.php?storyId=89986017.
121 Bill Mears, Scalia Won't Recuse Himself From Cheney Case, CNN.com, May 6, 2004, at http://www.cnn.com/2004/LAW/03/18/scalia.recusal/  (Justice Scalia’s duck-hunting trip with Vice President Cheney).
122 Stanford Law School Directory, Michael W. McConnell, at http://www.law.stanford.edu/directory/profile/91/Michael%20W.%20McConnell/ (Harvard, Stanford, and the University of Utah),
123 Richard A. Posner, Overcoming Law (Cambridge, MA: Harvard U. Press, 1995) at 111.
124 Posner, Judicial Behavior and Performance, supra n. 33 at 1274.
125 Karl Llewellyn, The Common Law Tradition: Deciding Appeals (1960) at 135 (emphasis added).
126 Abimbola A. Olowofoyeku, Suing Judges: A Study of Judicial Immunity at 197.   
127 Poindexter v. Greenhow, 114 U.S. 270, 303 (1884).
128 Saikrishna Prakash and Steve D. Smith, How to Remove a Federal Judge, 116 Yale L.J. 72, 90 (2006) (citation omitted).
129 See e.g., Or. Const. art. VI, § 8 (a judge can be removed from office for wilful or persistent failure to perform judicial duties, generally incompetent performance of judicial duties; or a wilful violation of any rule of judicial conduct as shall be established by the Supreme Court). The Judicial Conference Committee on Judicial Conduct and Disability recently issued a decision stating that
a cognizable misconduct complaint based on allegations of a judge not following prevailing law or the directions of a court of appeals in particular cases must identify clear and convincing evidence of willfulness, that is, clear and convincing evidence of a judge's arbitrary and intentional departure from prevailing law based on his or her disagreement with, or willful indifference to, that law.

Memorandum of Decision (Judicial Conference Committee on Judicial Conduct and Disability Jan. 14, 2008) at 8, http://www.uscourts.gov/library/judicialmisconduct/jcdopinions108.pdf.
           In many cases, willfulness may be inferred from the judicial act itself.   As Chief Judge Alex Kozinski of the Ninth Circuit notes:

Judicial action taken without any arguable legal basis … is far worse than simple error or abuse of discretion; it's an abuse of judicial power that is "prejudicial to the effective and expeditious administration of the business of the courts." See 28 U.S.C. § 351 (a); Shaman, Lubet & Alfini, supra. § 2.02, at 37 ("Serious legal error is more likely to amount to misconduct than a minor mistake. The sort of evaluation that measures the seriousness of legal error is admittedly somewhat subjective, but the courts seem to agree that legal error is egregious when judges deny individuals their basic or fundamental procedural rights."); In re Quirk, 705 So. 2d 172, 178 (La. 1997) ("A single instance of serious, egregious legal error, particularly one involving the denial to individuals of their basic or fundamental rights, may amount to judicial misconduct." (citing Jeffrey M. Shaman, Judicial Ethics. 2 Geo. J. Legal Ethics 1, 9 (1988))). 

In re Complaint of Judicial Misconduct, 425 F.3d 1179, 1185 (9th Cir. 2005) (Kozinski, J., dissenting).

last updated:05/07/2008