Bloomberg Law
Dec. 3, 2019, 9:00 AM

INSIGHT: Judging the Judges—A Plea for Training, Accountability, Higher Wages

Yuri Vanetik
Yuri Vanetik
UC Hastings College of Law, San Francisco

Across the country, in America’s courtrooms, the justice system is languishing. Our judges were once revered as the most learned members of our communities. We thought of them as scholars and trusted them to follow the law. Now, they are struggling to understand the complex modern legal issues that did not exist 100 years ago.

Their lackluster performances can likely be attributed to an absence of adequate training and a lack of accountability. Many practitioners complain that there has been a rise in judicial apathy, recklessness, and even deliberate disregard for black letter law.

Best practices in the judicial profession are often ignored. This is consistently overlooked, since the judiciary’s malaise does not involve corruption and because we believe that the appellate courts can safeguard us from errors and occasional malfeasance of the lower courts. Unfortunately, when poor judicial performance is systemic, it is not adequately addressed by the appellate courts.

The appellate system is suffering from some of the same ailments as its lower court colleagues. Professor Barry C. Edwards published a study in the Emory Law Journal that points to affirmation bias and how appellate courts lack the bandwidth to remedy systemic failure.

Edwards states: “We know the appellate system fails to correct some outrageous errors. Many innocent men and women, including some awaiting execution, have been exonerated by DNA evidence, even after appellate courts reviewed their convictions and affirmed that no harmful errors were made at trial.”

Judicial Apathy and Disregard for the Law

American judges, unlike those in the developing world, are generally not corrupt in the conventional sense. They don’t take bribes to “look the other way” or to render decisions they wouldn’t otherwise hand down. However, over time, they have gotten apathetic and entitled.

Lack of accountability leads to corruption of values, and instead of following the law, judges often sloppily attempt to back their equity-driven decisions (which are often based on nothing more than their world view) into legal rules and precedents.

The Solution

Judges may all be attorneys, but they need additional training beyond law school. Additionally, they should be subject to continuing training similar to and in addition to continuing legal education mandated by state bars for lawyers. Judges should be reviewed by peers, appellate panels, and lawyer practitioners. California, for instance, has a site known as The Robing Room, which allows purported practitioners and litigants to review judges.

The problem with judges really boils down to this: while the world has evolved, our legal system hasn’t kept pace. Back in the 1800s judges were active in their communities. There were no complex antitrust and intellectual property cases. The law itself—like the world at large—has become more complicated. I have written about similar concerns with the jury system, arguing that jurors are poorly trained to deal with their obligations as jurors.

Judges should be held accountable for their errors, ignorance, and malpractice—they are meant to serve the public, after all. After a certain number of their decisions are overturned on appeal, they should be called to account. This can be accomplished by assessing judges whose decisions get overturned with enough frequency a monetary penalty of, for example, 10% of their annual salary. The funds could be used toward judges’ training programs.

These seemingly simple measures, combined with higher salaries for judges, will save the American legal system from disrepute.

Judges must adhere to ethics laws, which means they must provide financial disclosure forms and reveal any financial or personal interests that might require them to recuse themselves. Their activities are subject to the oversight of circuit councils, state boards, and the Administrative Office (AO) of the U.S. Courts.

However, presently, nothing other than the appellate process attempts to address the merits of judges’ decisions and adherence to rule of law in adjudicating cases before them.

The erosion of faith in our judicial system had led litigants to refer to the legal system and the outcomes it yields as “arbitrary,” “prejudiced,” and “accommodating the wealthy who can spend more money”.

I’m not alone in ringing the bell of concern, either. In April, Massachusetts legislator Thomas Golden (D-Lowell) filed a bill (H. 1343) requiring that judges’ performances be reviewed every seven years, noting the following:

“Every so often you’ll hear of judges making decisions that people are just outraged by. ... It’s worth it to have these discussions where people are held accountable. But this is not about a singular decision. This is about a track record of poor decisions. If an elected official continues to make poor decisions, there’s a remedy. In this situation, there isn’t.”

Judges are underpaid, so there is a shallow talent pool from which to draw when vacancies occur. Judges earn, on average, $85,715 a year, while the average attorney pulls down $118,860.

It is likely that lawyers who are going to take a significant cut in pay are those seeking a seat on the bench because of family legacy, ego, or those who couldn’t cut it in private practice.

The quality of judges is lacking that much more in states like Nevada or Texas, where candidates are elected to such positions; there, the sole criteria is electability. In short, judges’ compensation has to be adjusted to attract smart and experienced lawyers and judicial appointments need to be merit based.

Why Should We Care?

The old adage, with great power comes great responsibility, is certainly true in the case of our judges. I’m certainly not in favor of constraining judges’ autonomy, but I would like to make sure that when they fail, they are held to account, because when judges err they’re also disrupting social solidarity by continuing to make our legal system less reliable. And in a free society, this can’t be tolerated.

Incompetence and recklessness could potentially be even more debilitating than corruption when it comes to faulty outcomes. In both cases, the results are based on factors other than the rule of law.

If we become disenchanted in our justice system, we risk becoming a third world country. To stop what seems to be an inexorable descent into a framework that is no longer trusted by the American public, we must address key concerns within the judiciary:

  1. An increase in judicial salaries, so they are at least on par with attorneys’ median pay;
  2. The creation of an independent commission to vet nominees to the bench together with robust ongoing peer review;
  3. Mandatory retirement ages;
  4. A division between the criminal and civil courts, so that judges and attorneys can focus upon one or the other;
  5. Three-judge panels to rule in, at the very least, larger civil cases, as opposed to juries.
  6. Pecuniary penalties for judges who get systemically overturned on appeal and/or obtain poor reviews, and bonuses for judges who excel.

The escalating malaise of our courtrooms has to be fixed. If it is not, the integrity of our legal system is in question. Once we lose faith in the rule of law, we put our democracy at risk.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Yuri Vanetik is an attorney, Trustee at the University of California Hastings Law School, and Lincoln Fellow at the Claremont Institute. He has been appointee of Gov. Arnold Schwarzenegger (R) as California Lottery Commissioner and California Criminal Justice Council Commissioner and has also served on the Homeland Security Council for Region I.