Question about new underqualified judges

In My Humble Opinion
1

As I understand it, there is a large enough number of minimally qualified judges being appointed at the moment that it is a cause of grave concern. What I’m wondering is, if a judge is just plain incompetent, how evident would that be to those around them?

Do all judges have staffs of legal clerks to look up caselaw for them? Are judges expected to know which particular precedents they want to look up, or can they just tell the clerks “bring books what got torts in 'em”?

Are judges in appellate court always expected to produce an opinion that expressly covers their process of deliberation; i.e., why they made the decision they did and how it relates to established precedent and the lower court’s ruling?

If a judge is incapable of expressing themselves clearly and rationally in writing, will somebody cover for them?

Finally, if they repeatedly hand down decisions that show a clear lack of understanding of basic law, or a distinct lack of any rational basis, or that completely flout all prior caselaw/precedent/the Constitution, what happens? I doubt it’s happened much before now but I suspect we’ll be seeing a lot of it in future.

2

“…large enough number of minimally qualified judges being appointed at the moment that it is a cause of grave concern…”

  • Citation needed for that claim *
3

Specify a country?

4

Federal judges can be impeached and removed by Congress. One judge was impeached and ran for Congress in 1993 and he’s still serving in Congress.

For state judges there are various ways they can be removed depending on the state. But many of them are elected so they can be voted out, that even applies for many state supreme court judges. Here in NC I am pretty sure all judges are elected but some are appointed and serve until the next election.

5

There have been several judged “not qualified” by the ABA. Putting someone on the bench with that rating is almost unprecedented.

Here’s one:

6

I’m assuming you are talking abut federal judges appointed under Article 3 of the US const.

All district court and Courts of Appeals judges are able to appoint clerks who do research and draft opinions for the judge. I’m not sure how many. ISTR district court magistrate judges (one level lower) were able to name 2 law clerks. So hiring competent clerks will hide a ton of deficiencies on the judge’s behalf. A judge can essentially tell their clerk, “I want to decide X. Draft a decision that supports that.” Then the judge can just sign it.

The judge can also have the clerks review any written pleadings by the parties, and prepare memos for the judge - “cheat-sheets” if you will.

In addition to the personal clerks, the district and appellate courts have general clerks, who can be assigned research and writing tasks.

So basically, the judge just needs to keep their mouth shut during open court, so as not to appear a fool. The basic response is, “I’ll take it under advisement.” Then go back behind closed doors and have your staff do your work for you.

Federal rulings and decisions can be appealed to the next level, tho it is costly and time consuming. And there is an administrative body (I forget the name/acronym) that reviews judges’ productivity, and how often they get reversed/remanded.

There always have been stupid, unqualified, unreasonable, and biased judges. It is pretty obvious to those who practice before them - and I would assume, to their colleagues. Most federal judges aren’t inherently stupid people. They know they have a good gig, and IME even the worst tend to learn how to conduct themselves so as not to flaunt their incompetence.

There is definitely a learning curve. No matter what a lawyer’s experience, it does not DIRECTLY transfer to being a judge. But even the procedural and substantive material can be learned. And there are quite limited numbers/types of actions that have to be taken IMMEDIATELY. At the very least, a judge can always call a recess - without giving ANY explanation, and go back to chambers and ask his clerks “WTF do I do in THIS instance?” Federal judges are - in many respects - little kings/queens.

Not sure if this is the sort of thing the OP is asking.

I’m not sure the “qualifications” of the recent appointees is nearly as big of a deal as the philosophical bias they bring. Wouldn’t have been as big of a deal had previous administrations been able to fill vacancies.

7

Thanks, RealityChuck. Does anyone want to take a stab at the other questions which in a nutshell are, how incompetent can you be as a judge and get away with it?

For instance, I understand Kavanaugh has never tried a case in court. Given the often intricate nature of Supreme Court cases, that’s got to be a pretty severe handicap.

Is there enough of a support system in place that basically anybody who made it through law school with a C average can sit on the SCOTUS without making a total fool of themselves?

Whoops, cross post. I type slow. Thank you Dinsdale.

8

Dinsdale, that is exactly what I was asking, and my mind is blown. So they don’t HAVE to do any of their own research or even writing, though I expect many of them do. That is truly frightening. Imagine, they could say “I want to somehow credibly overturn years of established precedent but I have no idea how – get me a plausible basis before lunch.”

(Later) “It all depends on what ‘shall’ means.”

9

Dinsdale, I have some questions:

In California, the state court system in which I worked, each party had the ability to peremptorily challenge one judge without cause. Attorneys were reluctant to use their challenges because who wants to incur the wrath of a judge, but when their case was assigned to a judge obviously unqualified or biased to hear their case, the attorneys wouldn’t hesitate to use their kick.

Is there a similar system in use for the district courts? What about the circuit courts, where panels of 3 judges sit? Is there any way to kick a judge on the panel without stating cause?

10

No.

IL has a similar option of 1 automatic challenge to the assigned state court judge. The concept is entirely foreign to federal practice.

The closest thing I can think of involves federal magistrate judges. They are appointed pursuant to statute, not Art 3. Their function is to relieve the DCt judges of various responsibilities. The DCts can grant Mag Js authority to do just about anything a DCt judge does. But the parties have to consent to the Mag J having final authority. If the parties consent, the Mag J issues decisions which are appealable to the Circuit. If the parties do not, the Mag J issues a Report and Recommendation (which is generally rubber stamped by the DCt.)

When you go to the Circuit, you are randomly assigned a panel of 3 judges. You are not told the makeup of the panel before the day of oral argument, so you cannot style your argument for the specific judges. If you disagree w/ the panel’s decision, you can request a rehearing “en banc” - by the entire Circuit.

I’ll say again, very few people get appointed to the federal bench who are completely stupid and incompetent. Sure, it happens, but just getting into and out of law school and passing the bar weeds out a lot of the really stupid people. The bigger issue is if a judge has prejudices, or stratified views on specific legal issues. In that instance, they can pretty much just keep issuing what I will characterize as “wrong” decisions.

Decision-makers have a great deal of leeway to take action in ways that are unlikely to be appealed. And then, if they ARE appealed, whether they are reversed. It is incredibly rare for a Court of Appeals or the Supremes to call out a lower level colleague for anything other than an error in a specific case. So the crafty judge will know how far they can go, and how to write their decisions to avoid being reversed. A “biased” judge can go pretty far advancing their agenda w/o facing any repercussions.

One other thing I forgot to mention. It can be really obvious when a judge gets a new clerk. Most clerks are for a limited term - a couple of years. When a new clerk comes in, you will perceive a clear change in the same judge’s decisions.

11

Dinsdale, thank you for your thoughtful and thorough answer.

I was afraid of that.

12

Kavanaugh was a Circuit Court Judge on the D.C. Circuit, which is the second most important court in the country, for twelve years before he was nominated to the Supreme Court. He had served as a law clerk prior to that.

13

Here is an article that sheds light on how many unqualified judges have been rammed through by McConnell during Trump’s tenure. (Vox)

It’s pretty bad.

14

Even Vox admits that Trump’s judges are highly qualified:

https://www.vox.com/policy-and-politics/2019/12/9/20962980/trump-supreme-court-federal-judges

“He’s filled the bench with some of the smartest, and some of the most ideologically reliable, men and women to be found in the conservative movement”

“It’s tempting to assume that Trump’s judicial appointees share the goonish incompetence of the man who placed them on the bench, but this assumption could not be more wrong. His picks include leading academics, Supreme Court litigators, and already prominent judges who now enjoy even more power within the judiciary.”

“…helped Trump identify many of the **most talented **conservative stalwarts in the entire legal profession to place on the bench.”

"Approximately 40 percent of Trump’s appellate nominees clerked for a Supreme Court justice, and about 80 percent clerked on a federal court of appeals. That compares to less than a quarter of Obama’s nominees who clerked on the Supreme Court, and less than half with a federal appellate clerkship.

In other words, based solely on objective legal credentials, the** average Trump appointee has a far more impressive résumé than any past president’s nominees**."

15

Fine job you’ve done there of cherry-picking the article. Everyone should read it in whole to learn what we’re in for.

16

Pretty good on cherry picking what Vox has to say there. Everyone should read Vox to see what “unqualified” means in this context.

17

Mostly true.

Couple of things, though: A federal judge’s clerks tend to be hired right out of law school. They are typically smart kids from good law schools (a federal judicial clerkship is a plum resume-padder, and an entree into the litigation departments of the big firms, who pay first-year associates something in the neighborhood of $180,00 per year, plus various bonuses, which is somewhat shocking given that a district court judge is paid $208,000 per year, with no bonuses).

So, although they’re smart, they have next to no experience whatsoever. The judge isn’t going to be able to rely on them for quick answers to “what do I do now” questions, although I suppose they could always look something up in the CPLR.

District court judges tend to have litigation backgrounds. They know the drill.

For circuit court judges (and for Supreme Court judges), there’s less nuts and bolts stuff. They’re doing appeals exclusively. All theory, not much in the way of practice. Circuit court judges (and, again, Supreme Court justices) are sometimes appointed from the ranks of distinguished law professors (like Elaine Kagan, for example).

I’m not a lawyer – I’ve worked in the IT departments of very large (like 2,000-plus lawyers) law firms for about twenty years, so I’ve seen a lot of this stuff. I also got to observe my father, who was a district court judge until his retirement, for a similar length of time.

18

You would have to cherry pick to find anything bad about Trump’s judges in that article.

19

For a long time in NC you did not have to be a lawyer to be elected as a judge. They finally changed that around 30 years ago. I don’t know if any judges back then were not lawyers, I suspect that did not happen often.

20

Non-lawyer judges are still allowed in 22 states. In Arizona, Colorado, Montana, Nevada, New York, Texas, South Carolina, and Wyoming, non-lawyer judges can hand down jail sentences for misdemeanors without the right to a new trial before a lawyer-judge.

Other states have “Justice Courts,” (Arizona, Arkansas, Connecticut, Louisiana, Maine, Massachusetts, Maine, Minnesota, New York, New Hampshire, North Carolina, Texas, and Vermont) presided over by an elected “justice of the peace” who are not required to have any training in the law whatsoever. They typically hear misdemeanor cases, traffic violations, other petty criminal infractions, and small claims. They can hand out 6-month jail sentences all day long and have minimal oversight.

Here’s a couple of very interesting news articles about them (also, along with the Wikipedia article on “Justice of the peace” my cites for the above):

When Your Judge Isn't A Lawyer - The Atlantic (from 2017)

https://www.nytimes.com/2006/09/25/nyregion/25courts.html (from 2006)