From The Law and Politics Book Review

Vol. 8 No. 10 (October 1998) pp. 365-367.

OUT OF ORDER: ARROGANCE, CORRUPTION, AND INCOMPETENCE ON THE BENCH by Max Boot. New York: Basic Books, 1998. 244 pages. Cloth $25.00. ISBN 0-465-05432-3.

Reviewed by Ashlyn Kuersten, Department of Political Science, Western Michigan University. E-mail: Kuersten@WMich.Edu.


"What do you call a lawyer with an IQ of 80? Your honor." With an introduction like this, it is not difficult to guess what WALL STREET JOURNAL editorial and features editor Max Boot thinks is wrong with our court system. In short, the problem is "gavelitis" and its symptoms include "advanced pomposity, pathological sanctimoniousness, congenital self-importance, and aggravated eccentricity" (p. 26). His book is an attempt to explain this phenomenon and give suggestions for improving the judiciary generally. While he is rather effective in explaining his term "gavelitis," this book fails to contribute much to an academic discussion on the judiciary.

The book begins with a foreword by Robert H. Bork. Both here (as well as throughout the book), one can see the same lines of reasoning that permeated Bork's TEMPTING OF AMERICA and to a lesser extent SLOUCHING TOWARDS GOMORRAH:

(1) our judiciary is flawed;

(2) much of what has gone wrong occurs in any system with an independent judiciary (because independence is another word for power) and a written constitution (that contains a bill of rights);

(3) the federal courts should be put under democratic restraints -- notions to the contrary notwithstanding, they would not violate the original intent of the founders; and

(4) it is imperative that people are informed of how badly the courts are behaving; once they understand how bad things really are, they will exert the force needed for reform.

In a slightly different twist, Boot argues that what is wrong with our system is not the court system itself (as Bork would argue) or the lawyers (as many commentators have argued), but the judges themselves. Judges have become the "priests of our civic religion" (p. xv) who have politicized our court system. He attempts to show how judges have contributed to the "revolving door in criminal justice; to the lotto mentality in civil justice; and to the loss of democracy in constitutional law" (p. xix). A tall order, indeed. His first chapter offers some examples of incompetent judges (i.e., Lance Ito, Sol Wachtler) and an argument that the selection systems in most states preclude selection by merit -- instead, judges are increasingly selected because of skin color or gender. Furthermore, after they arrive on the bench, our system fails to hold judges accountable for their bad behavior: few people vote in judicial elections, and few incumbents face challengers. In a particularly coherent passage, Mr. Boot rightly concludes that lower courts are more important to the future of the legal system than the Supreme Court, largely because so few cases ever make it to the Supremes. This is probably the most solid chapter of the book. While one may not agree with many of his assessments, his arguments hold together quite well.

The second chapter is less successful. It looks specifically at criminal sentencing and argues that too many judges are pro-defendant and "coddle" people who should be punished. He claims that it costs about the same (roughly $15,000 to $25.000) to keep someone in prison for a year as it would to send a student to an Ivy League college -- but these costs are based on unnecessary privileges that judges give prisoners (e.g., law libraries and larger cells). His solution is to build more prisons so judges can be tougher on crime without worries of prison overcrowding. I found this chapter wildly evasive on what judges (and society) are to do about the protections of defendants provided for in the Constitution while they are getting tough on prisoners. In chapter three Boot builds on his criticisms of lenient judges presented in the previous chapter with an explanation of the exclusionary rule and MIRANDA. By including so many exceptions to both, the Court has turned Fourth and Fifth Amendment law into a mess and left judges with little guidance. The result? Judges are forced to use their own personal preferences because the rule of law is so conflicting.

Chapter four begins his examination of constitutional law as a way of demonstrating how judges override decisions of democratically elected leaders. In this chapter, Mr. Boot can barely contain his contempt for "liberal" and "activist" judges. Curiously, while he rightly makes note in the first chapter of the fact that judicial activism is not a strictly liberal phenomenon, he then uses the words liberal and activist interchangeably throughout the rest of the book. Careful editing would have eliminated this inconsistency. Boot uses this chapter to rail against rulings he finds particularly liberal and therefore wrong. He spends a good deal of time examining gay marriage, as well as the rulings of Ruth Bader Ginsburg, specifically noting that her opinion in the VMI case was "striking for its arrogance" (p. 107). Chapter five expands on this discussion by taking on judges who are making policy directly in government, jails and schools. His argument is that democracy is "short-circuited" when judges enforce public morality; society has political leaders to do that. He also harbors suspicions that many academics exalt judicial intervention because they realize that intervention will be more liberal than public sentiment. Unfortunately, Boot fails to explain the basis for this argument.

In chapter six he moves on to the civil justice system and this time attacks juries for issuing out-of-control damage awards. His harshest criticism, however, is leveled at the judges for failing to stop them. Often, he claims, trial judges give jury instructions that are favorable to the plaintiff. This chapter gives some astounding statistics. For example, we spend 270 percent more on litigation than on police and fire protection combined, and that the civil justice system consumes 2.2 percent of America's gross domestic product, accounts for 70 percent of the cost of childhood vaccines, and one-half the cost of a football helmet. Alarming as these statistics sound, they are tempered by the fact that Boot fails to explain how the data were calculated (or even where they came from). Chapter seven moves to an examination of the campaigning of judges -- specifically, Boot takes aim at state judges who accept campaign donations by lawyers who appear before them. These judges are thwarting the judicial process they were elected to protect, Boot argues.

Finally, in chapter eight, he offers some solutions. Many of the problems he chronicles -- "lazy judges, stupid judges, arrogant judges, incompetent judges" (p. 199) -- will not go away. And some of the suggestions for fixing the problem, like term limits for judges, will only make things worse (e.g., it would both deny the public the services of good judges, and give judges more freedom to make unpopular decisions). Further, fixing the problem is difficult because while judges are sometimes too activist in overturning state laws (like those concerning legislative term limits and abortion regulations), they are also frequently not activist enough in their leniency toward criminal defendants and absurd jury verdicts.

The tone of his last chapter sounds something like "Judges should be more conservative in some issues, but less liberal in others." In all fairness, however, he does put forward some reasonable suggestions. For example, he suggests that only the Supreme Court be allowed to rule state and federal laws unconstitutional, and then only by a two-thirds vote (instead of the current majority). He makes some other less-partisan suggestions pertaining to selection systems of both state and federal judges, as well as some creative oversight proposals. For example, Boot contends that by televising court proceedings we could increase judges' visibility and thus increase the judiciary's accountability. Unfortunately, these proposals are not very well thought-out. For example, he does not present any evidence (other than his own claims) that the visibility of legislators afforded by C-Span increased their accountability. Additionally, the U.S. Judicial Conference has banned televising the work of federal district judges for some (arguably) valid reasons. Nonetheless, his basic conclusion is well taken -- only by having more public exposure will we be able to hold judges accountable for their misdeeds.

The problems I have with this book could arise from the fact that the author did not intend for his audience to be scholars (or students) of the judiciary -- that may be what Mr. Boot means when he states that the book is not a "dry academic text." Additionally, as an active member of The Federalist Society -- a group principled on judicial restraint and fidelity to original intent -- some of the chapters tend to have a rather ideological spin to them. While it is certainly an interesting read, the book at times tends to read like a polemical treatise on activist judges (who are often mistakenly characterized throughout the book as liberals and Democratic appointees). It contains inherent contradictions that demonstrate a rather simplistic analysis of the problems in the judiciary. For example, Boot argues that the Court shouldn't make policy, and that judges should rely on the original intent of the founders. But in a discussion on the lack of deterrence of the death penalty, he argues that deterrence would be greatly enhanced if it were mandatory for first-degree murder. In doing so, is he not calling for the Court to make policy? Additionally, since we do not know whether this was the intention of the founders, wouldn't the Court be dismissing the reliance on original intent that he calls for? Unfortunately, logical inconsistencies like this make this book often sound more like a shrill indictment of a liberal judiciary than an analytical treatise on the third branch of government.





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