I ask this because there seems to be a serious conflict of interest inherent in the current suystem. As former lawyers, judges have a conflict of interest-they have to keep on the good side of the state bar associations, and this limits their capabilities. Also, in cases of misconduct by a lawyer, they are unlikely to be able to push for reforms, for the same reason. I find it hard to believe that a judge can be impartial, when he is or was a member of the bar, whose representatives come before him. I also think that the lawyesr have a strange system-most state bar associations offer conflict resolution procedures (for clients who have been wronged by their attorneys)-how can this be anything but a joke, since the members of the bar association are all lawyers.
Of course, since(in my state) the judges are mostly failed politicians, the matter is made worse-these guys 9the ex-politician judges) are not about to bite the hands that feed them (the legislature controls the funding for the court system).
So HOW can we have a TRULY INDEPENDENT judiciary? By :
(A) choosing judges who are not lawyers
(B) establishing independent budgets for the courts, removing the patronage inherent in the political system of funding
© a completely independent judicial review board, with members from academia, the working class, as well as lawyers
Make sense? How can this be done?
Are you advocating a system like (I believe) France’s, where law school graduates choose to be judges, rather than lawyers, and follow a different career path?
Huh? How are they limited? Are you saying that they can’t make a ruling adverse to one party because they will piss off one side’s lawyers? One lawyer’s bad day is the other lawyer’s victory party.
“Reform” seems to indicate a systemic problem. “Misconduct” seems to indicate a lawyer not conforming to the system in place. If a lawyer is breaking the rules in place, why would the system need to be reformed to correct that? If, OTOH, the Judge doesn’t like the way the lawyers are acting, but it is within the rules of conduct, then it isn’t misconduct at all. IANAL, but I work with them everyday. Trust me when I tell you that lawyers very much do not like to piss off their judges in any way. Second, what on earth does a voluntary conflict resolution system have to do with an impartial judiciary? It is simply a way to resolve problems without a second round of litigation. It isn’t mandatory.
(A) If Judges are elected, we are free to elect whoever runs. Further, apointed Judges need not be lawyers, though many are. It seems only natural though to apoint/elect people who are familiar with courts and laws etc. to run things. You wouldn’t want a bunch of lawyers to be deans at a medical school, why would you want a doctor to be a judge? Do you think that all judges are supposed to do is sit on the bench and decide who is right? The American courts are not based on simply evaluating who is telling the truth (though one would hope the truth might count for something), but on complicated caselaw and judicial precedent. Lawyers understand that and are, potentially, better able to work in that context. I would also guess that most judges spend the vast majority of their time not in the courtroom hearing cases, but ruling on written motions and writing their opinoins. All of this takes a familiarity with the law that most non-lawyers don’t have. All that being said, there is not prohibition on apointing or electing non-lawyers to the bench.
(B) Cite? Can you point to a single case where a legislature has extracted revenge against a specific judge or has sought to cut their budget in reaction to an unpopular ruling? Is this truly a problem?
© Well, now since you seem to think that the Judges are beholden to the lawyers and the legislature, why do you think that this “independent” board would be any different? Wouldn’t the Judges just become servents of the whims of this group?
There are many things that could be done to improve the efficiency and function of the courts (filling some empty apointments for starters) but prohibiting lawyers from being judges doesn’t seem to me to be one of them.
Your observations about the potential conflict of interest for judges applies to all elected officials. Those who were in the meat-packing business regulate the meat-packing industry. Those who were pharmacists regulate the drug industry, etc. etc.
The difficulty here is that the judge is the individual who keeps the trial legal. He makes sure that evidence is introduced in accordance with the rules of evidence, which are established by law. He is supposed to make certain that all aspects of the trial are in accordance with established rules. This is a highly technical subject and would require a system like another poster mentioned. An individual would have to train in the law relating to trials and then become a judge without ever having actually conducted a trial. I suppose some sort of 'apprentice judge" program could be worked out to help solve that problem.
What do you mean by “independent budget?” Do you mean that the courts would have their own taxing power and the power to spend that money as the courts see fit? And how would that remove patronage, since judges are people too? As long as the legislature has the power of the purse politcs will enter in. And it should, because that dirty word “politics” is how social questions are resolved. The only check on that is the voters at election time.
I think that “completely independent review boards” are a pipe dream over the long haul. And I don’t think the haul is all that long.
Something like that, but without the wigs (do they still wear them?).
I do think that judging and lawyering could be seperate careers. The jobs are actually quite different in that judges decide, and lawyers argue. Would you want a heart surgeon to do the fillings in your teeth? 
And I believe that judges should be qualified. Some aren’t.
Maybe there would be fewer appeals?
I asked a similar question a couple of years ago, but can’t find it.
Peace,
mangeorge
But they both interpret. There’s the key.
How do we know that judges aren’t biased? We don’t. They probably are. I think it’s just a matter of trust, though. We trust that they will interpret the law fairly and rule accordingly. But if don’t trust them, then who?
Who would you suggest we have fill their robes? Who on this earth doesn’t have his or her own biases?
Given that everyone has biases towards something, I would much rather the person on the bench be skilled and educated in the law and not some random shmoe off the street. If that person happens to be a lawyer, so be it.
Passionate prosecution, passionate defense, but dispassionate ruling.
I think that’s what I’m trying to say.
And of course the judge should be well educated in law. That’s the whole point, isn’t it? Judges rule on points put forth by lawyers. One should expect them to possibly know more about the finer points than lawyers.
Successful lawyers need to know much more than just the law.
Both, I think, are pretty tough jobs. If you’re good at it.
Peace,
mangeorge
Wow, that’s about as vague an accusation of incompetence as I’ve ever seen. No specific people, situations, or even specific classes of people or situations that you believe are unqualified, just a bland generality. I’ll go ahead and comment on it anyways.
What really are the qualifications of a judge? There are only a few things they really need:
- a strong understanding of the rules of civil and criminal procedure appropriate to the level of court (state or federal)
- a strong understanding of the rules of evidence
- the ability to read and evaluate arguments in the form of various briefs, suggestions in support of motions, etc.
What do they NOT need? Well, they don’t need any knowledge of substantive law (meaning anything other than procedure.) Lawyers do not know the law, they just know how to find it and evaluate it. We spend 3 years in law school so that we can learn a few basic legal concepts, enough that when we take on a case we know where to start looking and what to look for. Over time, a lawyer who specializes in one VERY narrow type of action might come to know the law as pertains to that field well. A judge has no use for such information, as he/she must preside over cases of all kinds.
As such, any person is “qualified” to be a judge if they’ve had a law school education and a few years clerking for a judge. Some judges may have better logic and reasoning abilities, and thus be more qualified, but they’re all qualified if they have those 3 skills. We might expect more from the judges in our higher courts, like the Circuit Courts of Appeal or the SCOTUS, but it isn’t really necessary. Those appointments are largely political. That’s not really a problem, all these people are qualified for thier positions.
The previously discussed system of following a “judge” career path after law school would work perfectly. A few years as a clerk for a judge, combined with your 3 years in law school, would give you all the abilities you needed. From there, any promotions or higher appointments could be performed on any criterion we were to posit, it wouldn’t matter. We’d have a fully qualified judiciary.
I think your analogy is flawed–the heart surgeon is trained extensively in a completely different area of medicine. A better analogy is… well, there’s no really good analogy with medicine. The closest thing would be “who do you want teaching young surgeons? Medical professors, or old surgeons?”
Okay, it’s weak. My point is that no one is better trained to see throught the various arguments of lawyers than an experienced lawyer. I know from experience with the company lawyers that it’s a common critical exercise for them to judge cases on their own, to imagine the opposition’s case in order to better argue against it, and to plot the probably outcome of the case from the dispassionate perspective of “how would the judge decide?” A lawyer who can’t do that is a bad lawyer.
I recall friends from law school deriding the French system just because judges never practice as lawyers, and thus have no knowledge of the perspective of each side, and little experience with much of the legal maneuvering that goes on outside a courtroom.
Before making such allegations, you should research the issue to see if indeed such a conflict exists.
Until you come up with supporting facts (as opposed to anecdotes where a losing party blames a poor case on the lawyers or the judge), there really is no way to reasonably debate the issue.
My ananogy, hansel, was supposed to be a little joke.
The important question here is, do the french lawyers and judges still wear those wigs?
I don’t think lawyers should be excluded from becoming judges if they get the proper training. I do wonder why a successful lawyer would want to be a judge. Doesn’t the pay kinda suck?
Peace,
mangeorge
Power. Cool robes.
I believe that they do still wear the wigs. Certainly in Britain, and I believe in Canada.
What constitutes proper training for a judge, separate from the experience of being a lawyer?
In Canada judges do not wear wigs, but do wear robes.
Training for being a judge?
Law school studies.
Sometimes teaching at law school.
Almost always being a lawyer.
Judge’s school and regular continuing education.
Compared to a senior partner on Bay Street/Wall Street, no, the pay is not that great, but compared to the pay of a typical senior lawyer, it is quite good, and the penision is amazing.
Part of ensuring that judges are impartial includes paying them enough that bribes would not tempt them. Another part of ensuring that they are impartial is to make their pensions sweet enough that they do not have any fear of being sacked.
Once one’s financial comfort is guaranteed, other aspects take on a greater importance. At its most basic, would you rather listen to arguments and make decisions, or would you rather be making those arguments? After a successful career of making the arguments, would the grass seem greener on the other side of the counsel table?
Thanks, Muffin, for both answers. I doubted that being a judge was as simple as stated above.
I think I’d rather argue. For the defense. I understand that asst. DA’s pay really does suck, but that’s not why.
Guess I read too much fiction. Bonfire of the Vanities, for example.
Peace,
mangeorge
I believe most lawyers who become judges take a huge cut in pay. (In fact, I was speaking to a judge about this a few days ago.) The average salary of a judge in state court is just over $100,000 and in federal court it is around $150,000, which is about the same as a starting salary in a big NY firm. I suppose the pay cut is not as drastic in other states.
mangeorge, the vast majority of lower court decisions are upheld on appeal, so the reason for so many appeals is not bad decisions by judges.
I guess it depends where you are. In my area, Ontario, the average income of a lawyer is about a third to a half less than that of a judge, depending on the level of the judge. Of course that is comparing apples with oranges, for I sure don’t see many average income lawyers making it to the bench. When lawyers’ average peak incomes by age are compared against judicial incomes, the judges still make a passle more.
It’s really only the top earning lawyers that are at a par with judges here. That raises the whole issue of the highest paid lawyers usually being those on Bay Street in corporate/commercial. Family lawyers and litigators off in the sticks don’t make anywhere near as much, so it is hard to come up with a fair comparison, given that judges need to have a broad range of skills, and that so much of the court time is spent with family matters and tort matters. Thus although a corporate/commercial lawyer from Bay St. may make more than a judge, such lawyers may not necessarily have the broad range of experience across various areas of law, which is something usually required from judicial candidates. What it comes down to is that judges are picked from senior lawyers, but not necessarily the highest paid senior lawyers.
Here is a page with the federal judiciary incomes: http://www.fja.gc.ca/jud_app/salary_e.pdf and here is a page with an old average peak lawyers’ income: http://www.lsuc.on.ca/equity/pdf/societyreport_revised16_jan.pdf
Something to keep in mind is that lawyers in Canada on average make significantly less than those in the USA, including the Bay St. crowd, so don’t go comparing these figures with American figures.
Anyway, here is a page setting out what they look for if you want to become a federal judge in Canada: http://www.fja.gc.ca/jud_app/pub2_c_e.html
The criteria include proficiency in the law, well rounded legal experience, advocacy experience, and commitment to the law, so it would be pretty darn hard for someone who is not a lawyer or a law professor to make it to the bench.