Addressing the title rather than the story, I really like the system Colorado has for state judges and wish we could copy it at the federal level. A nonpartisan panel creates a pool of candidates, then the governor nominates one and the state senate confirms them. Then the important part is that every so often the public gets to vote on whether or not to retain them as judges.
This way the public gets a voice in judicial matters, but without the problems you see in states with directly elected judges.
There is no such thing as a “nonpartisan panel” under the current political alignment. The kind of people who participate in such labels are invariably high trust, high education types. If they’re republicans, they’re Liz Cheney types rather than Trump types. If they’re Democrats, they’re Elizabeth Warren types rather than Bernie Sanders types.
Sure, but there are requirements in place to address some of those things. The commission can't be more than half+1 of the same political party, has to include a mix of lawyers and non-lawyers, etc. Compared to blatantly partisan judicial selections in other places, I think this system works pretty well.
> Police themselves? Police themselves? I don’t even know what the fuck you’re talking about.
Nobody thinks judges should police themselves. The question is how to do the policing in a way that respects separation of powers. Federal judges are subject to impeachment. They can be prosecuted in the same way as any other public official. Assigning the power to ethics committees staffed by unelected bureaucrats creates a whole host of separation of powers problems.
And it’s very sad to seen Ken’s deterioration into a Huff Po or Salon writer. The profanity here is gratuitous and unnecessary.
> Nobody thinks judges should police themselves. The question is how to do the policing in a way that respects separation of powers.
Maybe you missed it, but the claim is directly quoted in the original post[1]. 4 in 5 judges believe that the judiciary should police itself which, by any measure, is not “nobody.”
The article refers to a statement by Justice Roberts in his end of year address, but Justice Roberts doesn’t use the phrase “police.” I don’t think there’s any dispute that judges are subject to literal “policing.” If they engage in misconduct they can be investigated and prosecuted just like anybody else. And they can be impeached.
If by “policing” mean supervising judges the way an employer might supervise an employee—then obviously the judiciary needs to do that itself. Enabling other branches to investigate non-criminal, non-impeachable behavior would be an egregious violation of the separation of powers. The judiciary is a co-equal branch of government. They’re not a department of America Inc. where the President. To use Ken’s example of a judge being an alcoholic, thats obviously not the business of anyone but the judiciary, and Congress if they choose to impeach. It’s the same as a Congressman being an alcoholic.
"Deterioration" into profanity? If you'd said this to him on Twitter 10 years ago, he'd have told you to "snort his taint". Profanity is his shtick, so much that his podcast on NPR had a swear jar sound effect.
This is an unusually straight-laced post for him; the profanity is obviously restrained for effect.
He's great, and hasn't really changed a whit (though the world around him has).
This is a problem every activist dealing with baised judiciary faces. And there are biases - they don't get reported because it puts a dent into our faith in this institution - but they exist. And if you see them you will forever lose faith in not only the judiciary but the other institution that does have an impact on it.
It is the media. Judiciary is obsessed with appearences. That is all they care about. A decision that looks unjust can have people revolting, and that is the failure of the institution. So they follow media like crazy celebrities.
And so you have plant articles in media that these judges read. It takes time and effort but that is how you bring change.
Lawyer here -- I came up with an idea to allow lawyers to review and rate judges years ago when I started out in insurance defense. Eventually built it (legalclimate.com) but never could figure out how to create interest in it. Maybe it's just a bad idea, no product market fit and all that.
Law is a weird and fickle business. It's way behind the rest of professions as far as technology goes, and is still mired in tradition, for better or worse.
Judges are very biased no matter how neutral they seem. I have not been able to accurately predict whether I will win a motion. I can think I've got the law and facts on my side, only to lose to a whiny opponent. I don't whine to judges and I've watched many lawyers do that. In my experience blow hard whiny lawyers seem to get their way. I just can't be like that though.
The public has a poor understanding of the inner workings of law practice and the courts. Some of that is from TV and dumb books, but a lot of that is due to the "black box" aspect of the courts. Everything is sort of done in secret and without transparency. I had hoped to change that with my idea but it didn't work.
That was literally my one-sentence elevator pitch. I had one paying subscriber and then after getting frustrated, made it free and put Google ads on it.
Marketing and finding PMF seem like the hardest parts for me.
At least when the senior software engineer becomes progressively less competent, they tend to fail faster. The code doesn't compile, the builds fail, the tickets start accumulating. When it happens to a judge, the significant feedback can take years to return from the appeals courts. And even then it isn't disqualifying.
But there is no compiler for legal decisions, and no instant specifications to fail, and if trouble tickets start piling up, nobody has to notice them. Imagine what would happen to the quality of your code under those circumstances.
Good question. It seems like often judges and lawyers are almost immune from justice. I've seen lawyers do some awful things and face no repercussions aside from maybe a 30 or 90 day suspension, but the impact of their actions will affect people for life.
I’ve got plenty of issues with federal judges, but this is a little anachronistic.
My sense is that drug / alcohol issues get handled fairly efficiently now. The biggest problem is just the effect becoming a demigod for life has on the ego.
I'm a little less (more?) than "half kidding". I know it wouldn't be easy and would need a lot of oversight especially at the beginning but for years now I've thought the benevolent AIs (a la The Culture series) are one of the few paths forward for our justice system if not our government as a whole.
I want to be clear, I'm not saying there wouldn't be pitfalls but having so many of our institutions be completely dependent on humans acting in the best interests of the many and doing the right thing feels very much like a failed experiment.
Justice by algorithm is basically what is already in place - judges are meant to be follow a fairly prescribed set of steps and use their extensive legal training to do what is "usual" for anything that isn't prescribed.
The issue, as the article points out, is that wearing a robe and/or wig does not suddenly make people free from faults. The only solution is systems that avoid centralising power on one person as best they can, and clear guidelines on how that person should act when it is unavoidable.
This way the public gets a voice in judicial matters, but without the problems you see in states with directly elected judges.