A honest campaign ad for a judge

Thanks the Gods I don’t live in a state where judges are elected. Nebraska uses the Missouri Plan.

I received a video link from Brandon Muller, a guy with a neat sense of humor. Check out the sleeping Brandon/Lion photo on his page.

Anyway, view the attached video. It is funny, except, perhaps, if you live where judges are elected.

Thanks Brandon.

RGK

9 responses

  1. MO plan States are the new battleground in the effort to impact judicial elections with money, and apparently most disclosure laws do not include judicial elections, so the money is dark. Folks who give see judges as ours or theirs and are not much taken with the vision of disputes on courts as jurisprudential and not political.
    Ad was a stitch, sorry I turned serious.

  2. Sadly, I concur, Jon. And the only people to blame are judges themselves.

    I suspect that the American people have finally given up on “the childish fiction” (John Austin) of the judge as honest arbiter of disputes and to be blunt, there isn’t anyone who has reviewed the Judge’s recommended reading list who can say with a straight face that they’re wrong.

    Imagine that a pro se civil rights plaintiff confronts Richard Arnold in the beyond, asking him why he handed down a horseshit decision in obvious conflict with Supreme Court precedent — which destroyed his life. The ever-candid Judge Arnold replies:

    “In my defense, I only spent seven minutes considering your appeal (Arnold). But don’t feel like we singled you out. We know that we have a high error rate (Posner), and we train trial court judges to get rid of all cases like yours (Gertner). We know that trial courts routinely fabricate facts and misrepresent the controlling law (Posner, Silberman, Llewellyn … and for that matter, just about everyone), but no one on the bench really gave two shits. After all, what were unjustly-wronged litigants going to do? We had life tenure (Scalia).

    I tried to change the system (Anastasoff), but I was out-voted (Anastasoff, en banc).

    We were that sloppy with virtually all the appeals we decided. We didn’t bother with reading the opinions we delivered because they were “unpublished,” which meant that we only screwed one person. We certainly didn’t write them, and Heaven forfend that we should ever do anything as mundane as read briefs. Even trial court judges don’t bother (Kopf), because we judges had far more important things to do, like surfing porn sites in chambers (MISTER Nottingham, formerly of the District of Colorado; Judge Kozinski [sanctioned for it]).

    We were busy men. We had meetings to attend, junkets to go to, speeches to give, classes to teach (McConnell, who moonlighted by teaching at Harvard and Stanford while serving on the Tenth Circuit). You were there to provide us with an “intellectual feast” (Bork), and if you offered us broccoli, we were free to decline. You see, Supreme Court Justices (they insisted on the last word being capitalized) were even more important than we were, and were too engrossed in the writing of autobiographies (Thomas), books (e.g., Scalia, Breyer, O’Connor), law review articles (e.g., Scalia, Stevens), refereeing moot courts, greeting dignitaries (Roberts), and delivering pathetic speeches half-way around the world that no one could stomach if we were law profs — even when the Court was in session! (Scalia, especially) — to bother with a task as mundane as checking our work. They were interested in issues more important than YOUR rights (e.g., the constitutionally-permissible length of a Muslim prisoner’s beard. Seriously.).

    I mean, who do you think you were? A citizen? And were you so arrogant as to think that you had rights, little man? No, we judges were your masters and you, our slaves (James Madison). The Constitution certainly didn’t grant us that power, but we took it anyway.”

    People know bullshit when they smell it, and when judges issue embarrassingly absurd opinions like this one (King v. McCree, No. 13-2033 (6th Cir. Jul. 21, 2014), at http://scholar.google.com/scholar_case?case=15506129568930016014&q=King+v.+McCree&hl=en&as_sdt=4003 often enough, it attracts scorn like a light attracts moths. People could cut judges a little slack if they made honest mistakes in good faith, but when a judge is having sex with a party to a case, you would think that he would know enough not to preside over it, and that the law would be rational enough to hold that judge personally liable in tort for any injury resulting from his actions. If the Framers’ Constitution still existed — our judges have rewritten it to the point where it is no longer recognizable as such (Scalia, in dissent in Umbehr) — it would. But our judges have invented a doctrine of absolute judicial immunity from whole cloth (Floyd and Barker, in the Star Chamber), employing a sophistry so bizarre, even Heller (Catch-22) wouldn’t try using it:

    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.

    Grisham couldn’t make this up; his editors wouldn’t let him. As Tom Clancy put it, the difference between fiction and reality is that fiction has to make sense.

    Hercules is a good analogy, Judge Kopf. Cleaning up this mess makes the Augean Stables look like light housework. :

  3. Frankly, the guy in the ad is as qualified as any judge in a Missouri Plan state — far too many are the hand-picked lickspittles of the local elites. This blurb is from an actual endorsement of a local magazine in Colorado (caveat: sent to me by a retired Illinois attorney who had a personal run-in with him):

    Justice of the Colorado Supreme Court — Brian D. Boatright

    RETAIN

    Only 66 percent of the attorneys surveyed recommended Justice Boatright for retention, citing concerns about his ability to write opinions “that adequately explain the basis of the Court’s decision,” as well as his ability to make “reasoned decisions based upon the law and facts.”

    However, the justice acknowledges his shortcomings and vows to continue to improve the clarity of his writing. Attorneys also said that Boatright was courteous and allowed them the opportunity to present arguments. Add to this that 97 percent of surveyed judges recommended his retention.

    We recommend Boatright for retention.

    http://www.boulderweekly.com/article-13472-vote-guide-judge-retention.html

    You couldn’t make this shit up! The guy can’t write a coherent opinion to save his dong or think his way out of a wet paper bag — and he even admits that his critics have a valid point! — but yet, he is being endorsed for retention? And it’s not even a one-off:

    Court of Appeals — Terry Fox

    RETAIN

    While attorneys’ survey responses indicate that Judge Terry Fox treats parties equally and she extends courtesy and respect toward attorneys, their responses also indicate that she is weak in writing reasoned decisions that are clear and adequately explain the legal basis of the decision.

    Upon reviewing Fox’s opinions, the commission found some of her opinions did lack “in-depth analysis…”

    This isn’t a spoof. This is real! This is the clusterfuck you get in Missouri Plan states (and, truth be told, some federal courts). And frankly, the clusterfuck you deserve. In Missouri Plan states, the retention rate is higher than it used to be for the old Soviet Politburo.

    While the solution to weak legal writing is to hire decent law clerks, if you haven’t learned to think like a lawyer after twenty years at bar, you aren’t going to learn how to do it tomorrow.

    In a purple state like Colorado, politics rears its ugly head, even under the Missouri Plan. These two judges are manifestly incompetent, but if the voters threw them out on their tails, the other Party might get to replace them. And we all know that judges these days generally dance with the gurl who brung ’em (e.g., Scalia, Thomas). Therefore, the liberal Boulder Weekly has to endorse these two morons, whether they like it or not.

    At least in states with judicial elections, judges have to stand for re-election, and the other guy is highly motivated to point out the incumbent’s shortcomings. Just imagine if a Justice Boatright or Judge Fox had to face an opponent qualified to draw attention to them.

  4. This mirrors my experience with MO Plan judges. They don’t have any incentive to improve, and rarely do. An elected judge, otoh, understands the fear of God.

    The only difference between a judge who is elected or one who is appointed is in who he or she has to pander to. In states with contested judicial elections, all of the corruption is out in the open. People get to see judges as politicians in robes, and in an unacceptably high and increasing number of cases, that is exactly what they are.

    I think we need to admit that the system we have isn’t giving us competent judges, that the MO Plan is an abysmal failure, and that we need to rethink the selection policy for the 21st century. If you love the law, you fear this monster we created.

    We’d have to change the appropriate constitution to do this, but I would consider a process where all judicial campaigns were 100% publicly funded, and “equal time” would be required if a group wanted to throw dark money at a candidate. Judicial candidates would not have to pander to anyone, and be able to focus on why they are the voters’ best choice.

    I would consider doing away with traditional appellate courts, assigning appeals to random panels of veteran attorneys. (Since their law clerks write 99% of opinions already, you don’t need a lot of talent to do it.) If all we are going to get is partisan decisions from our current crop of clowns, we’d be more likely to get less partisan and more thoughtful decisions from random panels.

  5. All you have to do is read the parties’ briefs, and compare them with the opinions. Judges are pretty adept at hiding their biases in opinions, but when you read the briefs, you know how honest the judge has been.

    I defy anyone to establish that the MO or federal plan yields better decisions. In a state appellate court, you have a punter’s chance of having an appeal considered by an actual judge.

  6. Pingback: Professor Richard Hasen and Dahlia Lithwick are right on state judicial election ads but a similar and more serious problem lurks for the Supreme Court (and possibly the rest of the federal judiciary) « Hercules and the umpire.

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