This Article explores the problem of bad judges-jurists who are incompetent, self-indulgent, abusive, or corrupt. These bad judges terrorize courtrooms, impair the functioning of the legal system, and undermine public confidence in the law. This Article identifies types of judicial misconduct as well as examples of each. It examines existing approaches to the issue, each of which seeks in different ways to balance the values of independence, accountability, and quality. This Article then proposes a new approach. Under the panel-exclusion idea, the court administrator would randomly select a panel of trial judges and present the names to the litigants. The litigants would be allowed to exclude judges in such a way that at least one judge would be left at the end of the process. Parties would not be required to provide any reason for striking a potential judge, and judges would not know they have been excluded. Exclusion rates would be compiled and used in the process of judicial retention, re-election, and supervision. This Article urges that, when combined with existing approaches, the panel-exclusion idea offers advantages over currently available options.
In jurisdictions across the country, complaints are heard about judges and magistrates who are incompetent, self-indulgent, abusive, or corrupt.1 These bad judges terrorize courtrooms, impair the functioning of the legal system, and undermine public confidence in the law. They should not be allowed in office, yet many retain prestigious positions even after their shortcomings are brought to light. The situation, moreover, does not appear to be under control. If recent scandals in New York2 and other states3 are a guide, incidents of judicial misconduct may be on the rise.4
The problem of bad judges is embedded in broader considerations about the optimal design of the judiciary in American political culture. A basic tradeoff exists between independence, accountability, and quality. To preserve independence, it is necessary to insulate judges from external controls over their behavior. If judges are protected from external controls, however, they have fewer incentives to provide quality services. To ensure accountability, judges must be subject to democratic processes, but influence and patronage, enemies of good judging, are inevitable when judges are chosen by political means. The challenge is to select, retain, supervise, and remove judges in such a way as to maintain independence and accountability, while not unduly sacrificing quality.5
The policy space is already populated with approaches to this challenge. Several of these ideas make sense; however, the common element of most is a reliance on public processes.6 This Article explores a different reform, not inconsistent with governmental responses, but based principally on the actions of private parties. The idea has two parts. First, litigants would be presented with a randomly selected panel of trial judges and permitted as of right to exclude one or more in such a way that the excluded judges are shielded from knowledge about the litigants' choices and at least one judge remains to decide the case.7 Second, exclusion rate statistics would be compiled and used to aid in the retention, supervision, and removal processes.
This Article is structured as follows. Part I describes activities that mark a jurist as a bad judge. Part II addresses the fundamental policy tradeoff. Part III discusses existing approaches to the problem. Finally, Part IV sets forth and analyzes the panel-exclusion proposal.
I. Bad Judges: Types and Examples
Ideally, the mix of public policies employed to combat bad judges should take account of the full range of activities that impair the quality of justice in America's courtrooms.8 Most examples of bad judging can be grouped into the following categories: (1) corrupt influence on judicial action; (2) questionable fiduciary appointments; (3) abuse of office for personal gain; (4) incompetence and neglect of duties; (5) overstepping of authority; (6) interpersonal abuse; (7) bias, prejudice, and insensitivity; (8) personal misconduct reflecting adversely on fitness for office; (9) conflict of interest; (10) inappropriate behavior in a judicial capacity; (11) lack of candor; and (12) electioneering and purchase of office. …