Who Will Judge The Judges?


By Max Boot

Basic Books, 252 pp., $25

The struggle over control of the judiciary is one of the most bitter in Washington and many statehouses.

Liberals want judges who are sympathetic to the rights of defendants, minorities, consumers, women, and others whose rights they believe society has given short shrift over the years.

Conservatives want judges who will send criminals to jail, protect private property and business, and stick to a strict interpretation of the Constitution.

Into this debate wades Max Boot, op-ed editor of The Wall Street Journal and a former staff writer of The Christian Science Monitor. In "Out of Order: Arrogance, Corruption, and Incompetence on the Bench," Boot turns a harsh light on what he considers some of the most egregious examples of what he calls "gavelitis": activist judges, accountable to no one, who exceed their authority and usurp powers rightfully those of the executive and legislative branches of government.

This is no law book full of legal mumbo-jumbo. Boot writes in a clear, readable style about incompetent and arrogant judges; about judges who are so pro-defendant that they let off the obviously guilty on "technicalities." He what he believes are the number of cases in which judges have created new "rights" not set forth in the Constitution - including the "right" to abortion. His look at the problem of judges who take over jails and schools by judicial decree - in some cases running them for decades - is especially enlightening.

Boot is an unabashed conservative and many will disagree with some of his basic assumptions. I don't agree that O.J. Simpson was acquitted because Judge Lance Ito was incompetent; the incompetence was on the part of the Los Angeles police, who so mucked up the crime scene that the evidence could no longer be trusted. Nor do I believe that criminals are walking the streets simply because of the Miranda decision, which requires that suspects be advised of their rights to remain silent and to have a lawyer. Sloppy police work and judges who take Miranda to extremes are guiltier

Liberals will complain that a book of similar anecdotes could be compiled recounting runaway judges, prosecutors, and police who have egregiously violated defendants' rights. Many such cases rapidly spring to mind. But it's hard to argue with many of Boot's findings, especially in the area of tort law, where egregious fines have been imposed on out-of-state companies by judges who are often in cahoots with the defense attorneys in what amounts to multimillion-dollar shakedowns.

Many lawyers will be uncomfortable with what Boot has to say. But that is exactly the reason this book deserves a hearing. The judicial branch of government is, must be, at some level, accountable to the society it serves. Without society's respect and confidence, no legal system can survive.

While Boot is conservative, he takes swipes at conservative activism and solutions equally with liberal ones. His solution for better judges: the Missouri model, where the governor picks judges nominated by a selection committee, the judges serve for a trial period, and then are voted up or down by the legislature. He'd also like to see increased public scrutiny of sitting judges, such as the ratings in the New York Judge Reviews. Most of all, he wants people to pay more attention to what judges are doing.

Such solutions may or may not work. Many will disagree with Boot's definition of the problem. But his call for more scrutiny and debate about what the judiciary is up to is welcome. We'd all be better off - judges included - if society took up Boot's challenge.

* Lawrence J. Goodrich is the Monitor's congressional correspondent.

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