Judicial Reform: Junk the Judges!

By Richard W. Morris Nobody, but nobody, to date has proposed a real reform of the court system. This article does. The purpose here is to present an idea of true reform as distinct from the history of patchwork reform to a system of inherently poor architecture.

What is judicial reform? Let’s get our definitions straight from the beginning: The complete or partial change of the judicial system. Reform, in this context, means a fundamental change. An old saying goes: if you always do what you always did, you’ll always get what you always got. The State Bar of Arizona president, Joseph Kanefield, falls into this trap when he argues for more funding for the current justice system1 so we continue to get what we always got. Maybe funding is not the answer.

The first “reform” attempts were in 1922 when Chief Justice William Howard Taft proposed “at-large judges” to be assigned to congested courts. The already anointed federal judges, professors of law (both part of the Political Class) and wannabe lifetime appointees supported him because they hoped this would deflect the efforts of ne’er-do-wells who advocated an end to life tenure on the federal bench and more jurisdictional restriction of the lower federal courts. If we have learned nothing else as adults, it should be the truth of Lord Acton’s edit: Power Tends to Corrupt and Absolute Power Corrupts Absolutely.2 Those in power -1-

” and separated from the citizenry. but society at large. This is an example of the Fallacy of the False Alternative. congested calendars with associated delays. Perhaps there are better ways to select judges. wrongful criminal convictions. professional allegiances and cognitive dissonance trumping truth. Offend the king. At the time. the thirteen independent countries5 each adopted the Common Law and the accompanying judicial system. we have both an appointed and elected judiciary. lose your job — or your -2- . At the founding of the United States. and all Justice Court judges are elected. as to the Superior Court. King George appointed judges at his pleasure. judges4 suing the state to keep their comfy pensions.universally seek to increase the scope of their authority and deliver the message the little people are powerless against their awesomeness. which includes today’s judges.3 arrogant judges not treating counsel. and a strained state budget. The current system has spawned not only the typical problems of litigants feeling victimized by the courts. In Arizona. We now live with a judicial system that fails not only those forced to participate. depending upon the county. Either way. One of the hottest debates in judicial politics today is whether judges should be elected or appointed. those anointed are part of the “Political Class. litigants or witnesses with courtesy.

The founders of the United States thought a new and improved plan: appointing a judge for life. If elected. whether appointed or elected. got hired by some government job (or large law firm whose clientele involved government in one manner or another). but offers an entirely new concept of conflict resolution. This article does not attempt to repair the rusting hulk of a judicial system moored by a frayed and rotting rope to an antiquated anchor seated deep beneath the sands of the Early Middle Ages. Suppose judges are selected other than by appointment or election. then we also eliminate the pensions and all the perks government employees get with their jobs. by itself. Far too many judges went to law school. Nice try. If there are no permanent judges. Judges are political. To get appointed. Such a process eliminates objections associated with either of the current systems.head. and judging is not necessarily their full time job.6 they had to “know” the right people. but a couple of centuries show this scheme does not work. they had to mount a publicity campaign in the judicial district to gain name recognition. There has never been a real reform in the history of the United States or in any of the Common Law countries. This. -3- . and moved to the bench. will reduce the cost of judicial proceedings. with the hope of making the judge independent.

Ah. Trial Judges We start with a three-judge panel. Given most lawyers are wannabe judges. If one side fails to select. we don’t want to violate the 13th Amendment with involuntary servitude. on Chile’s southern coast. the pool is probably as large as the one at San Alfonso del Mar resort at Algarrobo. only those who would like to do so would be included on the judicial panel. Qualifications to serve as judge: any lawyer licensed for X years. I think all judges should take -4- . we can figure out a way for them to join in the selection. say ten years. how can we do this? Fire the judges and abolish juries. For better or worse. people seem to enjoy the judicial power of telling others what to do — or love the title. the two select the third who acts as the presiding judge. you ask. Additional qualifications might exclude those who did not practice law. After all. to give the individuals time to experience what the real world is all about. the court clerk reaches into a computer “hat” for a randomly generated individual who is thereby selected for any party refusing to select. let’s keep things simple. When multiple sides with conflicting interests pop up. Each side selects one judicial officer. For the moment.7 Of those lawyers qualified to serve as judges. such as professors who came out of law school in June and were assistant professors the following September.

many ideas come to mind. efficient thinking.8 Each potential judge sets whatever he or she wants as a standard billing rate to sit as a judge. which is tantamount to being the judicial officer. Most are lucky to bill four. When -5- . For example. I say lower for several reasons. In civil matters. How much and who pays the judges? In a criminal case. the judicial wannabe’s will take this into account when setting their fee schedule. The motivations probably run from wanting to do pro bono work to gaining experience and a reputation in dispute resolution.9 So. Cost is one aspect of justice and litigants must consider the price of a judge in the selection process. each party pays the rate for the judge they select. arbitrators or judges pro tempore. many lawyers volunteer for free to be mediators. and advanced evidence. which may be lower than their “normal” charges. Few “real” lawyers bill eight hours a day. Observing the situation today. This process is already famous for making the resolution of disputes within the reach of the entire population. Those who want to be selected are obliged to be competitively priced. and the third judge is paid by both parties at whatever the average of the amount each of the other two judges is paid. for reasons I will address in another article.(and pass) courses in recognizing cognitive dissonance in themselves and others. the state.

in essence.11 and pensions. For example. but I suspect more than a couple hundred.12 which makes the employment of each judge substantially more than first appears by a simple look at the posted salary. not many cases crammed into one court. The implementation will be gradual. and apply to be part of the pool. This plan is cheaper than the current system of salaries. Current cases would remain on the existing system or the parties could elect to change to the new and improved procedures. Cases filed after January 1 would be handled under the new system. Note. Better court availability because there is. this does not change the law and the courts would still be bound by stare decisis. allowing the court to more deeply -6- .10 perks. Arizona has 41 Superior Courts spread across its 15 counties. 2. The major advantages are: 1. that individual’s rate goes up or down and this controls how larger cases are decided by pricier judges and smaller cases by more inexpensive judges.a particular person’s reputation spreads as to the quality of decisions. Without going county-by-county I can’t get a total of how many Superior Court judges and commissioners are sitting. A system which is cheaper to operate. get a job. as judges come up for a “retention” placement on the ballot13 they would leave the bench. one court for each case.

With a large percentage of Americans living paycheck-to-paycheck (if employed). and to the employer who can no longer get the job done for which the person was hired. indirectly. 3. or some other public-trough).consider the law and the facts in the individual case. for the administration of dispute resolution and justice. the income loss is devastating to the individual. Beyond the direct and indirect costs. even a short-term trial affects the juror’s income. not only directly due to administration. Juries are expensive. Jurors are placed in the position of -7- . and 4. but. the city. Jury The above does not count the cost of juries. This civic responsibility comes at high cost. the issue is more serious. Judges are in tune with the real world because they work in it and are not cloistered in their protected environment. Unless the juror works for a government agency (like the post office. more importantly. his or her family. More civility among participants where judges treat participants with greater respect because the judges could be on the opposite end of the legal proceedings as counsel (or party) at one time or another as well as that pesky item: the participants are the folks paying them. because of the cost to the society at large by reason of snatching productive people from their jobs.

In fact. the cases were more simple than today. They served to settle a quarrel between neighbors. To do this. Today court cases are more complex and such knowledge.” Worse: if they couldn’t escape. is cause for disqualification. A universal rule applies: When you want a job done right.16 Back then. presumably we would experience more “just” decisions. the pay must be high enough to attract qualified people rather than the person described in the bromide that “nobody wants their fate decided by a jury so stupid they could not get out of jury duty.17 -8- . hire a professional. Rather than argue about what is a good method to select a jury.” and the Magna Carta in 1215 recognizes the concept. from which they evolved into “doing justice.being fact-finders with no education in the subject. let’s ask a more basic question: Why a jury in the first place? In law school. they are compelled to sit as slaves. hundreds of years ago.14 Written history shows they go back at least to the assizes of Henry II. If we had a professional jury pool. as Judge Brownes points out. This holds true from brain surgeons to yard workers.15 as a means of taking the census and collecting taxes. which is not much better in terms of justice. I was taught various hypotheses about the origin of juries because the origins of the jury system are a mystery. jurors were acquainted with the litigants and the dispute.

when asked the purpose of a jury. Most lawyers and judges. through scientific research in various fields of neurology. they had experienced an arrogant political class dressed in the elegantly robed-andwigged trappings of arbitrary authority and viewed the jury as their best protection from the government’s biased judiciary. and jurors). we know today an eyewitness account is the worst method to learn of the facts surrounding an event.While British subjects a thousand years ago did not understand the mental machinations of cognitive dissonance. Psychologists Carol Tavris and Elliot Aronson18 point out everyone has trouble accepting information that conflicts with a belief we “know for sure” is right. respond: “To determine the truth. including judges. psychology and memory function.” My. Mark Twain picked this up a hundred years ago when he said: It ain't what you don't know that gets you into trouble.19 -9- . self-justification and a host of memory and thinking errors which operate in the minds of all humans (yes. confirmation bias. It's what you know for sure that just ain't so. that does have a pleasant ring. causing people to receive information and remember differently what facts actually flowed into their brains. compounding the factfinding function when they make thinking errors in processing the information. lawyers. However. confirmation bias and self-justification. Science now knows about the psychological processes of cognitive dissonance.

an academic neurologist. devotes an entire lecture to the “Flaws and Fabrications of Memory” in his course Your Deceptive Mind. telling them if there is one scintilla of weight for one side. if left as is. biases. and demonstrate that our memories tell more about what we believe now than what really happened then. If we no longer have a government judiciary. do juries discover the truth? Probably not.20 These are important issues when dealing with witnesses and evidence in a trial. we do not need a jury. then it tips the scale. the litigants could have the choice between the new system or having a trial the old-fashioned way with the court peopled by cronies -10- . The Amendment could be repealed or modified and. with a three-judge court. Professor Steven Novella. as in France. All of which means. then we no longer need the protection of a jury from that government. Scintillas have varying weights. bestow a bounty upon each citizen as an individual and the society at large. and hypocrisies. Especially when we give them a preponderance of the evidence instruction as a guide. If we eliminate juries we cut costs. corrupting influences. depending upon the finder of fact. and modern cases are too complex for untrained finders of fact. In conclusion. The Seventh Amendment? Fear not.Tavris and Aronson illustrate the brain’s “blind spots” which make us unable to see our own prejudices.

2012. Mistakes were made (but not by me)—Why We Justify Foolish Beliefs. Bad Decisions. The British did not recognize “America. BrainyQuote.com. Joseph. 2. Kanefield.21 1. accessed June 3. Philip Hall. March 8. Lord Acton. This is not a joke. There may be some truth to the old joke that appointed lawyers are failures twice over: First because they failed practice. See Chapter 5. New York: Harcourt (Harvest Book). 3. and then again when they ran for office and failed to get elected. Jefferson Lankford.brainyquote. represented by retired judge Colin Campbell. I know personally of one such case.com/quotes/quotes/l/lordacton109401. and Aronson. ISBN 978-0-15-603390-9. Retired judges Ken Fields. Xplore Inc. thus causing them to kiss up to successful politicians who would appoint them to the bench. and Jon Thompson. front page “Valley & State” section. 2007. The Price of Democracy. Arizona Attorney. reported in the Arizona Republic. 6. perhaps it is time to change the system so we stop getting what we always got and try a new suit. 4. 2012. Tavris. Carol. http://www. then the process of amending the Constitution should be perfunctory. 5. 2012. The Treaty of Paris was signed in 1783 and ratified in 1784. While the civil jury is part of the fabric of our way of life.and those too feeble of mind to escape jury duty.” Parliament and the Crown (and the former colonists) recognized the birth of thirteen new nations on the North American continent. April 2012. Elliot. 7. -11- .html?gclid=CNrwt9f OsrACFegbQgod1VynTA. and Hurtful Acts. I suspect a litigant will choose my new plan and after it has been shown to be superior for a decade or so. An important fact often overlooked by modern historians. at 6.

State Retirement System and Long Term Disability.8. but the use of the jury system appears to have stemmed from yet earlier times. 2011. An -12- . This does not include perks. Should Trial by Jury be Eliminated in Complex Cases? University of New Hampshire School of Law. ruled from 1154 to 1189. The National Center for State Courts.azcentral. 9. In true form. wherein we find the majority of lawyers. See Arizona Senate Concurrent Resolution 1001. J. The article states Maricopa County Judge Norm Davis believes the system is fair for judges.htm 15. it would be all judges sitting by reason of the current system would be every two years. issued a report showing Arizona judges get about $155. King Henry II. sick leave. which is technically the High Middle Ages. Payment. for example: Medical Insurance. (2002). though important. When one adds the salary and the perks. January 1. we all know lawyers in larger firms bill 200+ hours per month by billing when they visit the restroom on the grounds they are thinking about the case. Employee Assistance Program.com/news/articles/arizona-pension-funds-elected. before any cost-of-living adjustments kick in. paid holidays (more than in private practice).com. including judges. Life Insurance.com. published November 10. in eight parts. 2012. Subsidized Bus Pass Program. Yes. after 20 years are able to retire on a pension that pays them 80 percent of their final annual salary in the first year alone. This is not true in smaller firms. who could earn far more in the private sector as lawyers. Deferred Compensation. Could they really? According to salary. Short-Term Disability. even before the Norman Conquest in 1066. Brownes. and Savings Bonds. elected officials. is not essential to fundamentally reforming the system because it is an administrative item to be worked out later. 2010. Dental Insurance. 13. An excellent example of how anyone in power wants to retain that power with the least oversight possible. my guess is most judges never made that much in private practice and had little hope of netting such a largess. March 18. Baker. 11. If I had a choice. as it is now. 12. According to an Arizona Republic Investigation. H.023. the Superior Court judges are now lobbying to have the retention ballot every eight years instead of every six. the perks available are. According to the Pima County website. Which leaves us with the question: Was Judge Davis out of touch with reality? Read more: http://www. 14. http://law.html and www.edu/risk/vol1/winter/bownes.000.unh. 10.000. The salary of a judge? $155. the median salary (not sole or small firm practitioner) for a Phoenix attorney (highest in the state) was $84. Vacation (lots of it).00 per year salary.salary. Hugh Henry.

More than one person who read a draft of this article told me the idea is radical. 19.fordham. New York: Harcourt (Harvest Book). I recommend this book to everyone. and Hurtful Acts. 2007.html 17. The Document does not use the word “jury.). “Radical” means a fundamental change. “Your Deceptive Mind: A Scientific Guide to Critical Thinking Skills. 72–76. My response was.edu/halsall/source/magnacarta. Magna Carta of 1215. but the actual source remains clouded in mystery. ISBN 0-406-93053-8 16. Carol. http://www. Ibid. And you will enjoy my article entitled: Police Reform: Can the Cops! -13- . Bad Decisions. 20. about the legal system.” but the function is set out. Tavris. ISBN 978-1598038286. Bownes. This quotation is widely attributed to Mark Twain. 21. ISBN 978-0-15-603390-9. Especially Chapter Five. pp. Elliot.Introduction to English Legal History (4th ed.” lecture 4. 18. The Great Courses. and Aronson. Mistakes were made (but not by me)—Why We Justify Foolish Beliefs. “You’re right. London: Butterworths.

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