© 1994 Karen Selick
Rent-a-Judge:  Maybe They'd Try Harder
An edited version of this article first appeared in the March, 1994 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.


 Rent-a-Judge:  Maybe They'd Try Harder

Is it possible to kill three birds with one stone?  Maybe, if you're talking about resolving problems in the judicial system.  First, here's a summary of the problems.

Number one: not all judges are good at their jobs.  Some are efficient; others waste time.  Some are consistent in their reasoning from one case to the next; others are like loose cannons on deck in a stormy sea.  Some are pleasant and polite to deal with; others are grouchy and rude.  Some are hard-working and conscientious; others start court late, quit early and fall asleep during trials.

Unfortunately, it's difficult to tell in advance how good a judge will be.  Once a person has been appointed, it's hard to get rid of him or her.  Worse yet for lawyers who have to appear in front of bad judges, it's virtually impossible for one individual alone to get a bad judge removed.  All you can do is try to protect yourself and your clients: you learn which judges are to be avoided, surreptitiously ferret out information about when and where they'll be sitting, juggle your schedule to conflict with theirs, and if all else fails, try to wangle an adjournment out of your opponent.  All of these strategies are officially discouraged by court administrators, who either don't want to admit there are bad judges, or don't want to see the good ones overworked while the bad ones remain idle at the same pay.

The second problem is the controversy over judges and their politics.  Should judges be permitted to speak their minds about political issues?  The tradition has always been that they be apolitical, or at the very least silent, if their disinterest is not genuine.  The facts have always been that judges are appointed by government, so there is inevitably a political component to their selection.  Whatever you may have believed about U.S. Supreme Court Justice Clarence Thomas' tale regarding Anita Hill, I'll bet you couldn't swallow his story that he had no views whatsoever on the famous abortion case, Roe v. Wade. 

The trend these days is to buck tradition.  Not only are recent judicial decisions loaded with political implications, but some judges have also actively crusaded for the right to speak up. The legal community is divided over this.  Some say judges should have the same freedom of speech as everyone else.  Others say they don't want to appear before a judge who gave a speech the previous week shooting down all the arguments they are about to make on behalf of their clients.

The third problem is the composition of the judiciary according to racial, sexual and other physical characteristics.  Should these attributes be a factor in selecting new judges?  Should the judiciary be a numerically precise reflection of society even if the pool of qualified applicants for the bench is not?  Some say yes; others argue that merit alone should govern the choice.

What's the magic bullet that will kill these controversies?  We must challenge the assumptions that being a judge has to be a full-time, exclusive occupation, and that judges must be assigned to cases by court administrators.  It doesn't have to work that way. 

Judicial training could be open to all lawyers who wish to take it.  Certification would be given to those who pass the course.  Lawyers could then make themselves available for hire in their judicial capacity in the same way that many now hire themselves out as mediators. 

When a judge is needed, counsel could select one from a panel of qualified people in their locale and book an appointment.  Opponents who couldn't agree on their first choice could work out a system of short-lists and preference rankings so that a compromise candidate could be found. 

Under this system, judges who were lazy, cantankerous, indecisive, sleepy, insensitive or unpredictable would find themselves with little business.  If they wanted to get much work as judges, they would have to find out what they were doing wrong and change it.

Judges who wanted to wear their politics on their sleeves could try it out.  They would soon discover whether their political views were drawing clients in or driving them away.  Some litigants might want a judge with a particular mindset; others would try to avoid him.  The decision to speak or to remain silent would be the judges' alone, and they would bear the consequences of their choice, positive or negative. 

If lawyers from minority groups wanted to become represented on the judicial panel in greater numbers, the choice would again be theirs.  If the litigating public really wants minority judges, then business would be brisk.  Even white male judges would want to ensure that their reputations were free of any hint of bigotry to attract clients in a multicultural society.

If this sounds like I'm advocating privatization of the courts, that should come as no surprise to my regular readers.  This system could be adapted for the less radical, however.  It need not involve private payment of the judges by the litigants.  They could still be paid by the government as they are now, although on a piece-work basis for work actually performed, rather than on a salary basis for merely being a warm body in black robes.

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June 07, 2000