Where Do Judges Come From?

In his State of the Judiciary Statement of a year or so ago, the Chief Justice of the United States took note of the grim fact  that only a minority of new federal judges come to the bench from private practice — only 40% to be exact. The other 60% come from the government. Nothing wrong per se with a lawyer  working for the government. But, as we are fond of noting from time to time, there is such a thing as too much of a good thing, and this is one example of it.

We were reminded of such stuff this morning, while perusing the editorial pages of today’s Los Angeles Times — Editorial, Three Solid Judicial Picks, L.A. Times April 22, 2012, at p. A25. In it, the Times endorses three candidates running for open judicial seats in Los Angeles County (which just happens to be the largest  trial court in the nation). Of the three candidates endorsed today by the Times — you guessed it, sports fans — all three are prosecutors. Golly, what a coincidence. And so are their competitors (if you don’t count the one who is described by the Times as a “radio host, punk rock drummer and bass player, and music impressario, as well as an attorney.”

The other day the Times endorsed three other judicial candidates, two of whom are also prosecutors while the third one’s pre-judicial experience involved the running of a bagel shop. No, we are not making this up folks.

So far, this is depressingly familiar stuff — a dog-bites-man story. After all, man, this is California. But glory be, a few tiny cracks are beginning to appear in the Times’ thus far unshakable committment to filling the local bench with former prosecutors and other government lawyers. This time the Times grudgingly concedes that “the court is in desperate need of experienced generalists.” No kidding.  As the Times also notes, the Los Angeles Superior Court consists of 450 judges who, in addition to criminal matters hear  “complex commercial lawsuits, landlord-tenant disputes, . . ., divorce and child custody disputes, conservatorship and guardianships, adoptions and foster care matters, traffic cases and plenty more besides.” To say nothing of eminent domain cases.

So the question asks itself: how much do many of these former prosecutors who have been spending their careers putting bad guys in the calaboose,  know about the finer points of all these civil matters? For some reason the word bobkes comes to mind. Indeed, it has come to our attention that a course in insurance law will be offered to sitting local judges because even moderately sophisticated knowledge of insurance — which is the life’s blood of the tort system — is not something that is within the ken of many former prosecutors.

Mind you, we don’t believe that former service as government counsel should disqualify an otherwise capable lawyer from becoming a judge, any more than a career in private practice should do so. But it’s a matter of degree and of  balance. And there’s the rub.

So it remains to be seen if the Los Angeles Times will now follow up on its misgivings about courts staffed by government lawyers and raise its editorial voice in favor of a more balanced bench. After all, the Times and the folks for whom it speaks, are all for “diversity.” So maybe it won’t be too much of a stretch for them to enlist, however reluctantly, in an effort  to support a bench that is more diverse in terms of its professional background, not just its gender and ethnicity. Do you think that is possible? We wonder about that, but who knows? So let’s just stay tuned and see.

Finally, we are not oblivious to the disincentives to judicial service that keep many private practitioners from seeking judicial appointments. First, there is the matter of economics — a good private practitioner who mounts the woolsack tends to take a huge cut in pay. Second, the process of seeking an appointment can be demeaning. In the case of the heavy hitters of the profession, it can be a case of “who needs it”? And finally, the day to day doings of a judge can get pretty intellectually dreary. Who wants to spend his or her life listening to mediocre, ill prepared and inarticulate lawyers who all too often make up a large chunk of day-in, day-out litigators? To say nothing of reading their written output.

Still, the job has to be done and in a society that relies on a rule of law, it has to be done well.  When Ronald Reagan was Governor, we are told, he relied on an informal committee that identified prospective candidates with promising judicial potential, and then did its best to persuade them to accept a judicial appointment. Will that work today when a good lawyer’s income is measured in multiple six or seven figures? Who knows? But it seems to us that it ought to be tried because today’s increasingly bureaucratized bench does not bode well for the perceived excellence and impartiality of our judicial system, which is indispensable to the courts’ stature.

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