Rebellion taking place in our country goes beyond Freddie Gray, Michael Brown and Trayvon Martin. Our justice system is broken not just for people of color. It is failing all of us. Preserving public respect for our courts is essential to a peaceful democratic society. Spreading unrest in our country shows we have reached the point where we must reform the courts. Beyond the sad state of our economy and global terrorism, there may be little more of importance to the fate of the United States than preserving the rule of law.
How do we improve the judiciary? Easy. Change the law. Suggestions below will cost our country virtually nothing, but will reap benefits of fairness, justice, social order and peace, particularly for the most vulnerable.
Three preliminary points: One, there are many outstanding jurists. The focus is on the bad apples. Two, reforming the judiciary is a nonpartisan task. It may take different shapes at different times and some judges may imagine their jobs are being threatened. There is nothing we can do about that. It is only imagination. Improving the third branch of our government is not threatening. Three, our courts are not broken from insufficient taxpayer funding, despite information court administrations may feed the media. Rather, surveys, factual writings, lawyers' perceptions and more support that our civil courts, at least, are increasingly dysfunctional because there are too many incompetent, biased and immoral judges on the bench and no one is doing anything about it. These judges dole out favorable rulings to friends, legislate from the bench, and advance their personal ideologies which impose their skewed life view on everyone else. They allow lawyers to twist the truth-seeking process which increases lawyers' fees. Others are critical pawns in the political arena. Others are lazy or mentally unable to meet the challenges of the job and should not have been appointed or elected. They're unlikely to leave the bench pre-retirement because their chances of getting a better paying job are low. But that's not the bad news.
The more disturbing news is there is little to stop bad judges because judges have too much independence and too little accountability. We sit here scratching our heads wondering how these judges get away with it, how injustices can occur in courthouses every day and how some people are losing everything because of it. The answer is easy: judges have too much independence and little accountability. Until there is accountability, freedom will continue to erode resulting in civil protests and bloodshed on our city streets.
Here are my shorthand suggestions to improve our judiciary:
● Trial and appellate judges must list connections with parties and lawyers before them. It cost nothing for this honesty and transparency. Evil happens in secret. Don't you want to know if the judge on your case is golfing, jogging or dining with your opponent or his lawyer?
● Challenged judges cannot declare themselves unbiased. Motions must go to a different courthouse. It makes no sense to allow judges to judge themselves.
● Consider abolishing judicial immunity for judges who act with malice. Giving judges immunity for malicious acts is illogical and dangerous. Police officers and other public officials who act with malice can be sued, so why immunize judges? If judges were required to pay a lawyer to defend their malicious acts, malicious rulings would diminish.
● Self-regulation is illogical. National and state tribunals should be implemented to remove incompetent judges.
● Make the judicial misconduct evaluation process more visible.
● Every order and opinion must accurately cite to the record. This is non-negotiable. Judges and justices with agendas write orders and decisions based upon invented statements masquerading as "facts." These people work for the taxpayers and if they cannot do a simple task like accurately state facts and law, then they need to find another job.
● Appellate justices' duties should specifically include policing lower courts. Changing their duties may change their mindset.
● Consider judicial term limits. It would purge the bad apples, but it would also remove great judges, which would be awful.
● Judges should have experience in areas of law in cases that come before them.
● Any lawyer who donates or causes a donation to a judge (judge's family, family member's boss, etcetera) whom the lawyer is appearing before shall be publicly reprimanded along with the judge who knowingly accepts the money or equivalent. Do it again, disbarment.
● Strengthen whistleblower protection to protect anyone who reports judicial misconduct. Those who work within the justice system have a bird's eye view of what's going on. However, there is a reasonable perception that if you speak up, you will be retaliated against or harshly accused of seeking "revenge." Through rulings, judges can display an all-pervading control of collective behavior and thought itself. Whistleblowers need our protection.
● Abolish the ability for lawyers' groups to act as fronts for judicial patronization. Say goodbye to your annual Las Vegas junkets.
● Open public dialog about our broken justice system. Most U.S. citizens agree Congress is dysfunctional or broken. But what people don't talk about nearly as much in public forums is our equally broken judicial system. Lying and immorality, common in the United States, are now commonplace in our justice system. We must say, not in our country, or you will face consequences.
The judicial system must hold the line even as the rest of society goes over the cliff with immorality. The U.S. will be powerless to hold the line if we do not pass laws to make it easier to remove bad judges. As our world becomes more complicated and treacherous, we must have a justice system that provides a safe harbor to sort out, not foster, the treachery. Our justice system is worth making right.
For additional resources see:
Out of Order, Max Boot (1998);
Judicial Misconduct, A Cross-National Comparison, Mary L. Volcansek with Maria Elisabetta de Franciscis and Jacqueline Lucienne Lafon (1996);
Transparency International, Transparency.org;
2007-09 The Regulation of Judicial Ethics in the Federal System, A Peak Behind Closed Doors, Arthur D. Hellman, University of Pittsburgh, Professor of Law.