O.K., now we are getting somewhere. This is part four of six parts on designing a model legal system. Part four calls for "A judiciary that is competent, fair, free of bias, and regularly evaluated by the citizens and the lawyers" who appear before the very judge to be evaluated. The judiciary is the linchpin of change.
To remind you, I have outlined a model legal system (See Table of Contents below, item #55 dated 10/1/08). Here is the summary:
The six (6) components of a model legal system are:
1. The law should be simply stated on all subjects, predictable and easily available to anyone including ordinary citizens; not just available to lawyers.
2. There should be dispute-resolution forums available to the public that are free of bureaucracy and legal trappings.
3. If a dispute cannot be resolved in public dispute resolution forums then case disposition should be through efficient, objective hearings marked by common sense and evidentiary rules, that allows the truth to emerge through predictable, routine application of the law to the facts.
4. A judiciary that is competent, fair, free of bias and regularly publicly evaluated by citizens and lawyers through the Internet in systems already available in every local area throughout the United States including Oregon (See www.therobingroom).
5. Lawyers and paralegals who are motivated by justice and fairness rather than greed, power (never underestimate the motivation for power) and expensive advocacy. The movie Michael Clayton would be required reading for all lawyers who aspire to work downtown.
6. Bar Associations dedicated to serve the general public rather than the legal-power elite.
So, today we are addressing #4, The Judiciary. I have written thirteen articles on our judiciary. (See, items #6-8,12,14,15,19,23,39,44,47-49 in the Table of Contents below)
Let me summarize the problem. Our present crop of judges are lazy and incompetent (often because they are underpaid). Fairness means nothing to them. Bias is rampant. I mean Justice Scalia goes duck hunting with Vice President Cheney when there was pertinent litigation before Scalia involving Cheney. Judges are not accountable. Here is why. Judges are generally immune from any sort of lawsuit against them under the theory that they can't be distracted from overseeing lawsuits if they are subject to lawsuits themselves. Ostensibly, each state's supreme court has the authority to oversee the trial court judges, but that doesn't work because they are all a "band of brothers" reluctant to kill the golden goose. In theory, most judges are subject to election by the people. This doesn't work because governors and outgoing judges plan in advance of elections. Then the governor appoints the new judge so they can run as ‘incumbents' in the upcoming election. Incumbents are almost always reelected. There is a disincentive for qualified lawyers to run against an incumbent because if they lose they still have to practice law before that now, unfriendly judge who is free to be mean, vindictive and unfair because there is no accounability.
So, what to do? Simple. Judges need to be formally and regularly evaluated by the citizens and lawyers who practice in their courts. Happily, there is already an Internet system to do just that. It is found at www.therobingroom.com
JUDICIAL EVALUATIONS -- Two weeks ago I personally handed out fifteen questionnaires to fifteen local judges asking a simple question. What is their opinion of judicial evaluations? Not one of them returned my questionnaire. The American Bar Association passed a resolution in 2005 recommending that each state implement a statewide system of judicial evaluations. Hey, Mr. or Ms. Judge -- It is time! We have a new kid in town and it is time for you to get on the bandwagon. Hey, Mr. or Ms. Legislator -- It is time for a formal statewide system of judicial evaluations. Hey, State Chief Justice...............................................!!!!!!! Hey, Federal Court Judge?? Hey, U.S. Supreme Court! Hey, State Bar Association!? Hey, Mr. or Ms. Fat Cat lawyer? (Oh, sorry, I forgot, you already have an investment in the present system.........).
SEQUEL -- I am keeping track of the names of each judge I am handing out questionaires to and will report back by name on who agrees with the American Bar Association and which judges want to remain unaccountable. In case you are keeping track, I have written to Justices Sandra Day O'Connor, Roberts and Ginsburg (twice) and none of them have gotten back to me.