Judging the Judges

By trappings and tradition, judges are a secular priesthood, oracles of the law, the embodiment of justice.

Dressed in black robes, heralded into court by bailiffs crying “Hear ye! Hear ye! All rise!” and addressed as “Your Honor,” judges are imposing, even intimidating. They are supposed to be: they have great power over people’s lives, and increasingly, they use it.

But who are the judges? Former lawyers, former politicians.

Most commonly, lawyers who knew politicians. Some rise above their own human limitations, but more do not. Mostly, they are ordinary men and women, coping fitfully with the failings of others, the endless procession of broken promises and brutal acts that are the daily business of the courts.

The system of justice is a huge and complex machine. Delicately balanced by counterweights, equipped with elaborate filters and safety valves, it is designed to sort the guilty from the innocent, restore rights, redress wrongs. In short, to do justice.

It is a wondrous invention when it works, but frequently it does not. Consider:

> Left a quadriplegic by a truck accident that was not his fault, Thomas Curtis, 57, waited five years before his personal injury suit went to trial in Modesto, Calif. A jury awarded him more than $2 million last January, but a judge reduced the damages to $350,000, and the case will probably be another three years on appeal before Curtis sees any money.

Meanwhile, Curtis has lost his $25,000-a-year income and his house; his wife has divorced him and emotional problems have sent him to a psychiatrist.

> In Ohio last winter, Judge Neil W. Whitfield sentenced Robert W. Attwood, 20, who had stolen $10 worth of beer from a neighbor’s garage, to four to 25 years in jail. On the same day, the same judge sentenced Mary Murray, a motor vehicles official, to five years probation for embezzling $8,000 in public funds.

> Last month in New York, the conviction of Eric Michael, 24, for robbery, burglary, rape and sodomy was overturned because he had been tried twice for the same crime. The first trial had been terminated by Criminal Judge Arnold G. Fraiman. Why?

Because continuing the trial would have interfered with the vacation plans of the judge and some jurors. Judge Fraiman, who had once before ended a trial rather than forgo a holiday, this time offered to postpone his plans, but he did not order the jury to do so; instead, he declared a mistrial.

A Yankelovich, Skelly and White poll of the general public, judges, lawyers and community leaders last year ranked public confidence in state and local courts below many other major American institutions, including the medical profession, police, business and public schools. Too much law, too many lawsuits and too many lawyers have all combined to overwork the judicial machinery. But the final responsibility for the courts rests with the people who run them: the 28,000 state and local judges, 1,083 federal administrative law judges who hear disputed claims brought to the regulatory agencies, and nearly 700 federal judges charged with upholding the law. Too often it is a responsibility that judges fail to live up to.

The litigation explosion in the U.S. has not just created choked courts and endless delay. It also means more power for judges. Tocqueville’s observation, made more than a century ago, that there is “hardly a political question which does not sooner or later turn into a judicial one” has never been truer.

This is so not only in the U.S. Supreme Court, which is expected to be the final arbiter of the law, but in courts all over the country. By reading their own views into broadly worded statutes and vaguely defined constitutional rights, judges have assumed—some say usurped—unaccustomed roles. Increasingly, judges, state and federal, can be found ordering government boards and agencies to obey the law. When the boards balk, as they often do, judges end up running school boards, welfare agencies, mental hospitals and prisons. Just last month, for instance, a Boston judge placed 67 public housing projects into receivership under court control because they had been mismanaged by the Boston housing authority. Such decisions often require judges to rule on specific questions like garbage removal from tenements, proper bus routes for schoolchildren and minimum hot water temperatures for prison inmates.

Judges are quick to assert that they are simply enforcing the laws and the Constitution. “Judges, unlike Presidents, Congressmen and lawyers, cannot generate their own business,” says Federal Judge Prentice Marshall, who halted discriminatory hiring and promotion practices in the Chicago police department despite Mayor Richard Daley’s vow to fight the decision. Whether by default or design, the judiciary increasingly has the last word on important social questions.

Within their courtrooms, judges are virtual autocrats. Many will not even talk to the press; thanks to last month’s Supreme Court decision in Gannett vs. DePasquale, they are now closing off their courtrooms. Already, at least 39 judges have banned press or public or both from pretrial hearings or trials.* Lawyers, out of necessity, bow before the bench. “The job corrupts people,” says Jack Frankel, executive officer of the California Commission on Judicial Performance. “The judge says, ‘I’m going on vacation.’ Everyone says, ‘Fine, Judge.’ The judge says, ‘I’m coming in late.’ Again, it’s ‘Fine, Judge.’ Pretty soon it changes them.”

Stories of judicial arrogance are commonplace. When a Japanese-American lawyer requested additional tune for a trial, a federal judge responded: “How much time did you give us at Pearl Harbor?” Former Los Angeles Municipal Court Judge Noel Cannon, who painted her chambers pink, kept a pet Chihuahua by her side and was called the “Dragon Lady,” once threatened to give a traffic officer “a vasectomy with a .38.” While hearing a voting rights case brought by blacks in Alabama in the ’60s, Federal Judge William Harold Cox exclaimed, “Who is telling these people that they can get in there and push people around, acting like a bunch of chimpanzees?”

The bench is obviously the worst possible place to encounter that kind of prejudice. Nothing is so damaging to the stature of the judiciary as the common perception that punishment depends less on what a criminal did than on the biases or whims of the judge.

Some sentences should vary, of course, according to the character and prior record of the defendant. The fact that shoplifters usually go to jail if they get caught in Charlotte, N.C., whereas they get probation in Albuquerque, may just reflect different local mores. As New York Criminal Court Judge Harold Rothwax says, “Communities have a right to view crime differently.” Mandatory sentences set by the legislature, which several states use for at least some crimes, can be more heavy-handed than evenhanded. Such laws cannot distinguish, for instance, between someone who steals to feed his family and someone who steals for excitement or easy money. But if discretion is something judges need to make the punishment fit the crime or the criminal, it is also something they too often abuse.

At the core of public trust is the belief that judges are impartial. New York Lawyer Simon Rifkind, a former judge, notes: “Impartiality is an acquired taste, like olives. You have to be habituated to it.” Some judges never lose the attitudes they brought to the bench; lawyers complain that judges who were prosecutors favor the state, and judges who were defense lawyers favor the defendant.

Faith in the judiciary may be faltering, but that has not stopped people from going to the court in droves. Civil suits filed in federal courts, which outnumber criminal cases 4 to 1, increased from 87,321 to 138,770 between 1960 and 1978. Over 16,000 cases have been pending for more than three years in federal district courts, double the backlog ten years ago. “If court backlogs grow at their present rate, our children may not be able to bring a lawsuit to a conclusion within their lifetime,” predicts Harvard Law School Professor Laurence Tribe. “Legal claims might then be willed on, generation to generation, like hillbilly feuds; and the burdens of pressing them would be contracted like a hereditary disease.”

Laws that spew from legislatures at the rate of over 100,000 a year inevitably mean more lawsuits. Too many lawyers use their skills to drag out cases. The object may be to wear down a less well financed opponent, or put off an unfavorable judgment. Sometimes it is simply a matter of greed, of contriving any excuse to keep fees rolling in. Favorite devices include making endless pretrial motions on one or another point of procedure, obtaining postponements (continuances) from the court, requesting huge amounts of information from the other side in the pretrial discovery process, or just burying the case in paper work.

Judges share the blame for the courts’ delay. In Pittsburgh, criminal judges have almost four times the caseload of those in The Bronx, but dispose of cases five times as fast. Why the difference? Because some judges take an active role in pushing a case along from the moment it is filed. They enforce strict deadlines on filing motions and papers and limit pretrial discovery; in short they stop lawyers from delaying. In other courts, judges sit back and let lawyers set the pace by handing out postponements freely.

Some judges simply cannot make up their minds. One California judge underwent psychoanalysis to get at the root of his inability to pass judgment. But a more fundamental problem is the way judges, particularly older ones, perceive their role. By training and tradition they are judges, not administrators or managers. That helps to explain why modern technology and management techniques have been almost totally ignored by the courts. “In a supermarket age we are like a merchant trying to operate a cracker barrel corner grocery store with the methods and equipment of 1900,” said Burger in 1970. He spoke from experience. When he came on the court in 1969, he asked to have some papers duplicated. The clerk had to explain to him that the Supreme Court Justices had no copying machine. Burger and other bench and bar leaders have pushed with some success for more efficient administration. “There was a day back when a judge said, “I’ll start my court at 9 or 10 or 11 o’clock or whenever I want,’ ” Burger told TIME. “But that attitude won’t work today.” Still, judges are jealous of their fiefs and do not like to be told to change their ways, even by higher judges.

This is especially true in state and local courts, where most of American justice is meted out. “In some ways we now function just as we did in the days of Charles Dickens,” says Judge James Lynch, chief justice of the Massachusetts Superior Court.

The court hours—generally 10 to 4—have not changed since the 18th century when lawyers and judges were farmers and had to tend to their cows, says Boston Lawyer and Novelist (Friends of Eddie Coyle) George V. Higgins. “We do business in total and willful disregard for the telephone, the automobile and the computer. On opening day of a district court session, you can find 300 lawyers waiting around to get their cases scheduled, with their meters running.” The trial date the judge wants often will not suit one or the other lawyer; when they finally agree, a witness will go out of town or fail to show up and trial will be further delayed. It is a costly cycle of inconvenience, frustration and ineptitude repeated in courts the country round.

There are exceptions. The courtroom of Erie County, Ohio, Judge James L. McCrystal is one. It is equipped with a videotape machine and television monitors. McCrystal does not need to bring all the lawyers, parties and witnesses into court at the same time for a trial. Witnesses can be questioned by lawyers and have their testimony video-taped at their convenience. One local law firm has fixed up a large mobile van with video-tape recorders so the court can come to the witness, rather than the witness to court. Judge McCrystal edits the film in his chambers or sometimes at home and shows it to a jury at trial. Result: McCrystal tries about three times as many civil jury cases as the average Ohio judge. He has been doing it this way for more than seven years, and he has never been overturned on appeal because of his use of technology. Yet the idea still has not caught on with other judges. Why? “Judges are the roadblock,” says McCrystal. “They just say, ‘I don’t want anything new.’ But only they can make this thing work.”

Perhaps. But there are a number of other ways to better use judicial resources and help judges with their heavy caseloads.

Among the most important:

> More judges. This is an obvious step. The federal judiciary clearly needed more judges to cope with its overwhelming load, and last fall it got them from Congress: 152 new judgeships, a 30% increase, the largest ever.

> Less law. Complex law makes for complex litigation. The hopelessly vague antitrust laws, for instance, have been a chronic problem for troubled courts since 1890 and produced a tangle of conflicting interpretations. The antitrust monster of U.S. vs. IBM is now ten years old and nowhere near resolution. Clarifying or simplifying labyrinthine laws would save millions of dollars in legal costs as well as free judges to work on other matters. Like regulatory schemes that do more harm than good by stifling competition, some laws might even be eliminated altogether.

> Getting cases out of court that should not be there to begin with. Some argue that no-fault auto insurance can help clear the civil courts by eliminating many lengthy personal injury suits. Decriminalizing so-called victimless crimes, such as vagrancy, drunkenness, gambling and marijuana possession —often randomly enforced—would ease the strain on criminal courts. Perhaps the most promising alternative is to arbitrate or mediate disputes rather than take them straight to court. Neighborhood justice centers set up by the justice department in Atlanta, Kansas City and Los Angeles have worked well, informally settling disputes like neighborhood squabbles and consumer complaints.

> Court reorganization. Fragmented or overlapping jurisdictions keep some judges underworked, others overworked, and still others doing the same work all over again. Seventeen states have adopted measures to streamline their court systems since 1970; reform came to Massachusetts in July, when its reorganization plan went into effect. No longer will criminal cases be tried de novo—from scratch—on appeal, and it will be easier to move judges around from court to court to even up work loads. Some courts have also improved efficiency by hiring professional administrators to set schedules and assign cases.

> Eliminate juries in civil trials that are too long and too complicated for laymen. At the Conference of State Chief Justices last week, Chief Justice Burger strongly urged judges to consider this proposal, pointing out that it can take “not hours, but days” for the judge to explain the legal issues to jurors, who then cannot always be expected to understand or remember what the judge said. Burger noted that Britain, which has less delay in its courts than the U.S., has successfully abolished juries in most civil cases.

> Speedy trial laws. Delay in the criminal courts means that many defendants languish in jail, whether or not they are guilty.

Forty-one states have laws on their books requiring that defendants go to trial within a specified period. However, these laws do not always work: they are vague and ambiguous, and judges are lax in enforcing them. When the laws do work, there is a need for more judges to handle the load and civil cases are backed up. Lawyers complain that they do not have time to prepare their cases, and that means that some prosecutions simply get dropped. Because of such arguments, the Federal Speedy Trial Act, expected to go into effect last month, has been postponed by Congress for one year.

> Plea bargaining. This is the most common solution to delay in the criminal courts. It is frequently denounced. In theory, criminal courts determine guilt or innocence only by the most thoroughgoing “due process.” In reality, justice is usually done by way of a deal: a guilty plea in return for a lighter sentence or reduced charges. The accused’s “day in court” lasts only a minute or two. In one such case in California, a defendant pronounced guilty of assault with a deadly weapon exclaimed in bewilderment: “What? You mean I’ve been tried?”

Some critics of plea bargaining complain that criminals get off too lightly. Others insist that defendants get railroaded out of their right to a trial by prosecutors who “overcharge,” i.e., charge defendants with worse crimes than they committed, to force them into guilty pleas. What everyone agrees on is that plea bargaining is at best an expedient to lighten case loads.

“Sheer volume almost mandates it,” says Judge Rothwax, who is careful to make sure the defendant agreed to the bargain and that it is fair. In New York, according to District Attorney Robert Morgenthau, the sentence a defendant gets from pleading guilty is not much different from the sentence he would get by going to trial. But in many other courts, clearing the docket, otherwise known as moving the business, becomes almost an end in itself.

Six years ago, a national commission on criminal justice recommended that plea bargaining be abolished by 1978. Today, it is still the method by which the vast majority of criminal cases are handled. It helps reduce the case load, but it also reflects the fact that the system cannot handle the flood of litigation. Says a Sandusky, Ohio, attorney, Thomas Murray Jr.: “When you talk about one case in 50 getting to trial, the system is not breaking down. It has broken down.”

The system cannot be repaired if the judges themselves are incompetent or corrupt. “The problems caused by unfit federal judges, whether from outright corruption, political favoritism or inability due to ill health or senility, amount to a hidden national scandal,” testified Clark Mollenhoff, a Pulitzer-prizewinning former Des Moines Register reporter, at a congressional hearing on methods of disciplining judges. (Mollenhoff has been investigating the federal bench for three years.) The only way to remove federal judges now is by impeachment, a cumbersome process. Only four of the nation’s federal judges have been tried and convicted by Congress in the nation’s history, none since 1936. Convicted of income tax evasion, perjury, bribery, conspiracy and mail fraud in 1973, Federal Judge Otto Kerner resigned from the bench only five days before he was scheduled to enter prison. Federal Judge Herbert Fogel of Philadelphia, implicated in a scandal involving backdated documents to win a Government bid in 1970, took the Fifth Amendment when questioned by a grand jury. He resigned last year before any disciplinary action was taken against him. Federal Judge Willis Ritter, infamous for an abusive temper that led him to bully lawyers and to hale a postmaster and 29 aides into court because their mail-sorting machinery in the courthouse was too noisy, was allowed to stay on the bench until he died last year at age 79. Examples like these, not to mention frequent charges of senility and laziness, have spurred congressional interest in disciplining judges. A Senate bill, supported by Attorney General Griffin Bell, would set up a court on judicial conduct to remove unfit judges.

It is easier to weed out state and local judges. Since 1960, 48 states, plus the District of Columbia and Puerto Rico, have created commissions to discipline judges for wrongdoing. A few of these commissions are effective: since 1975, the New York commission has removed ten judges, censured 65, suspended four, and 73 have resigned. California is now witnessing the unique spectacle of a public investigation of the state supreme court. At issue is whether some members of the court delayed announcing politically controversial decisions before an election in order to save Chief Justice Rose Bird from being ousted by the voters; so far the inquiry has shown less evidence of conspiracy than pettiness and distrust among the court’s seven justices. In many other states, accountability commissions exist in name only. Sanctions can be very mild. Massachusetts Judge Margaret C. Scott was reprimanded last February by the state’s highest court for “violating the rights of indigents and others” in some 40 cases. Her punishment: she was barred from judging for a year, but she still collects her $40,000 salary.

Totally exempt from discipline are what Frank Greenberg, past president of the Chicago Bar Association, calls “the gray mice”: judges who “lack the scholarship, the temperament, the learning” and are “simply in the wrong occupation.” Says Greenberg, a member of the Illinois Judicial Inquiry Board: “There is not a damn thing the discipline system can do about them.”

That is a convincing argument for getting better judges to begin with. In about half the states, most judges are elected. The rationale has always been that voters should have a say in choosing the people who resolve their disputes and enforce public law. But most voters do not know much about the candidates for whom they are voting. A Texas poll in 1976 found that only 2% could even remember the names of the county judges on the ballot. A campaign for office is an inexact gauge of how a judge will behave if elected. New York Court of Appeals Judge Sol Wachtler made a TV commercial showing him, dressed in his robes, slamming shut a jail door. This tough-on-crime approach was good politics, but voters favoring a law-and-order man were probably disappointed. Wachtler turned out to be, if anything, defense-minded. To get on a partisan ballot often requires a financial contribution to a political party. A New York judge remembers one candidate coming to him in tears because he could not come up with the necessary $25,000.

Over the past 40 years, half the states have turned to so-called merit selection for at least some judges. Typically, a judicial “selection committee” nominates several names, the Governor picks one, and the judge runs unopposed on a yes-no “retention ballot” after a year or more. The system can produce a higher quality bench, if politics does not creep back in. “The big problem,” says Stanford Law Professor Jack Friedenthal, “is the selection of the selectors.”

Political patronage has been the traditional way to fill the federal bench. Presidents appoint federal judges, but since Senators can blackball any candidate from their home state, they have the real power of appointment. Sheer embarrassment is about the only check. When Senator Ted Kennedy tried to nominate Family Retainer Francis X. Morrissey for a federal judgeship in 1965, other lawyers began joking that Morrissey was boning up for the job by reading the Federal Rules of Civil Procedure, the rough equivalent of preparing for surgery by looking at Gray’s Anatomy. Kennedy eventually withdrew Morrissey’s name.

Still, the surprising thing about the process is that it has worked relatively well. Says Mollenhoff: “Most observers agree that 90% of the nominees have gone on to become excellent federal judges. But another way of putting it is that 70 out of 700 federal judges should not have been put on the bench. That is way too many.”

The creation of 152 new judgeships last year gave President Carter the chance to fulfill his campaign promise: “Why not the best?” He has managed to make Senators use “merit” selection committees in 24 states, the District of Columbia and Puerto Rico, but some flatly refused. Maryland’s Senator Paul Sarbanes selected his former law partner; another, North Carolina’s Robert Morgan, nominated his campaign manager. Carter has also diversified the bench to make sure the judges’ backgrounds and attitudes more closely reflect the population’s. When he took office, only 1% were female and only 5% were black or Hispanic. So far, a third of his appointments are women or members of a minority group, or both, like Amalya Kearse, 42, a black woman. She will sit on a U.S. Court of Appeals in New York, after the U.S. Supreme Court perhaps the most powerful bench in the country. One thing that has not changed: 95% of Carter’s appointments are Democrats, just as 92% of Nixon’s appointees were Republicans.

Selection committees generally keep out the clearly unqualified. But they also will settle for what Senator Adlai Stevenson calls “the lowest common denominator.” Says Stevenson: “I fear the Brandeises and Carswells alike will be screened out and a high level of mediocrity will be enshrined in the judiciary.” Some desirable candidates have refused to be considered by selection committees; they did not want to gothrough the public-screening process and face possible rejection.

Other potential candidates see a federal judgeship less as a prestigious and challenging job than as very hard work for low pay. Senator Charles Percy has privately remarked that he has had to offer, the job to ten people just to get one. Says U.S. Court of Appeals Judge Edward Allen Tamm: “Federal judges are working harder than they ever did in private practice, but they never get their heads above water.” Worn down by the work load, comparing their salaries ($54,500 to $57,500) with the six-figure incomes of really successful lawyers, a discouraging number of federal district and circuit judges are going back into private practice. One of the 17 who have left since 1970, former Chief Judge Sidney O. Smith Jr., of the U.S. District Court in Atlanta, returned to his old law firm in 1974 to make enough money (twice as much) so that he could comfortably afford to pay his three children’s college tuitions.

Something is seriously wrong if the federal bench cannot attract and hold the very best. So much is expected of it. The judiciary is supposed to be democracy’s hedge on majority rule and executive highhandedness. “There is no character on earth more elevated and pure than that of a learned and upright judge. He exerts an influence like the dews of heaven falling without observation,” said Daniel Webster, no doubt casting his eyes heavenward. Definitions of a good judge read like recommendations for sainthood: compassionate yet firm, at once patient and decisive, all wise and upstanding.

Measured against that sort of standard, the human foibles and plain ordinariness of most judges are inevitably disappointing. Yet even unlikely characters can be good, if unorthodox, judges. New Orleans Municipal Court Judge Eddie Sapir wears jeans and turtleneck sweaters under his robes and compares himself to Joe Namath (“Both of us drive Cadillac convertibles, both were born in Pennsylvania, both have brothers named Frank, both like women …”). His chambers have pictures of racehorses and celebrities, and his campaign motto is “I gotta be me.” But Sapir is considered an efficient and capable judge by the lawyers who come before him; he is particularly well known for making slumlords obey housing laws.

Expecting a great deal from judges can have a self-fulfilling effect. “The robes and all the trappings of the courtroom can make a judge rise above himself,” says Columbia Law School’s Richard Uviller. It can give an otherwise unremarkable man a zeal for simple justice. Judge John Sirica was regarded as a man of mediocre intellect who browbeat counsel and was frequently overturned on appeal. Yet he had the guts to push Watergate from the break-in to the White House. He remained stubborn and unyielding. Criticized for taking a too active role questioning witnesses, he growled, “I couldn’t care less what happens on appeal.” His single-mindedness produced the truth.

Sirica’s example is proof that the robe can elevate the man, and a reminder of the need to preserve judicial independence.

But it is also an exception. The real work of the judiciary is the day-to-day, case-by-case job of striking what Judge Rothwax calls “the balance between fairness and efficiency.” When courts provide neither, there can be no justice, nor the appearance of justice. When people stop believing in the law, lawlessness follows. A society of laws is sustained partly by pure faith; courts that work well are the visible, basic affirmation of public trust.

They are, as well, the final judgment on the judges.

* In a rare interview, Supreme Court Justice Warren Burger told TIME last week: “The Gannett opinion was misunderstood. The case wasn’t about a trial, only about a pretrial hearing.” Burger blamed the press for misleading lower court judges on the scope of the high court’s decision. Presumably local judges have not bothered to read the opinion.