S.F. Judge Reprimanded

Interesting article on an S.F. judge:

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/11/18/BAAV147BAP.DTL

I've never met the judge, but he sounds like a former District Attorney.

I just checked--Judge McBride was a former assistant D.A. and a police officer. According to the S.F. Sentinel, "[Judge] McBride has previously been named Judge of the Year by both the San Francisco Trial Lawyers Association and the San Francisco Bar Association’s Barrister Club." Judge McBride was also elected the S.F. Court's presiding judge this year.

Nothing against Judge McBride, but in states where voters can elect judges, I recommend voting against former district attorneys if they lack private sector experience handling non-criminal cases. Some great judges were former D.A.s, but generally speaking, D.A.s tend to see the world in black and white. Also, while former district attorneys seem to have a better work ethic than non-criminal lawyers, this extra energy is usually caused by a Superman complex. What do I mean by a Superman complex?

Most D.A.s become D.A.s to protect society from criminals and bad elements. To place yourself in a role where you can single-handedly protect your fellow man by locking up citizens (some of whom may be innocent), you have to be comfortable playing God or Superman. But people who view power cautiously or who are mindful of their lack of omnipotence will be fearful of wielding any kind of substantial power. This means that the most confident lawyers, the ones who are comfortable playing Superman, will gravitate towards the D.A. role.

In fact, good D.A.s must have supreme confidence to function, especially after seeing horrors like rape, homicides, and infanticides up close. The average person who sees an 18 year old mother microwave her baby probably won't want anything to do with that situation; a D.A., however, must not only get involved, s/he must convince a jury to throw the young mother in jail. If the D.A. thinks about the mother's personal background, her poverty, or some other random factor, it makes his job more difficult. In short, the ability to see gray areas complicates throwing a fellow human being in jail, because a person may realize that in some alternate universe, given the same set of circumstances, it could be him or her across the aisle in the courthouse. Of course, someone has to prosecute unfortunate souls along with the hardened criminals, so you want D.A.s to be tough, supremely confident, and comfortable playing God with people's lives. At the same time, it's important to recognize that kind of attitude works best in criminal law, not civil law.

Many meritorious civil cases involve gray areas without hard evidence (i.e., a smoking gun, fingerprints, DNA). For example, employment cases sometimes involve nothing more than he-said/she-said scenarios, such as where a female employee alleges sexual harassment. Thus, much of the time, a civil judge has to decide whether a case has merit based solely on sworn statements from different people. Although the law requires judges to send cases to a jury if a reasonable person could see genuinely disputed material facts, after seeing so much hard evidence in criminal cases and so many criminal cases involving severe harm, former D.A.s tend to be less sympathetic to cases that lack obvious physical harm.

You will notice that Judge McBride was named Judge of the Year by the San Francisco Trial Lawyers Association. Those associations are usually run by personal injury lawyers, who bring cases involving physical injuries. Thus, it is not unusual for former D.A.s to be well-liked by trial lawyer associations, because personal injury cases usually involve obvious physical harm and more black-and-white facts than other cases--such as securities litigation or labor law--which don't appeal to a D.A.'s experience of associating meritorious cases with blood on the ground.

Again, I don't know Judge McBride, so I cannot comment on him specifically. The only reason I write this post is to encourage voters to consider voting for a non-D.A., a public defender, a solo practitioner, or a lawyer with private practice experience when it comes time to choose a judge.

Bonus: an Illinois judge jails a man for making a yawning noise in his courtroom. See here.

Judges and Life Tenure

All federal judges (not magistrate judges) get lifetime appointments. It's a great job if you can get it, but if you think absolute power would breed corruption, you'd be surprised. In practice, federal judges and their clerks (at least in northern California) seem more detailed with their decisions, not because of any inherent superiority in intelligence, but because it is harder for litigants to get to federal court. The federal courts' more restrictive barrier to entry (federal courts are courts of "limited jurisdiction") leaves them with fewer cases and more time to analyze them. More time to do something usually leads to an increase in quality.

In contrast, state courts get flooded with lots of weak cases and after a while, most judges, unless they have exceptional work ethic, tend to become jaded and/or extensively delegate to their smart, hard-working clerks. (By the way, the Hon. Judge Kevin McKenney of Santa Clara Superior Court comes to mind as one of the hardest-working judges in California.)

The WSJ recently wrote an article about a Los Angeles federal judge who is said to be out of control. It's a major embarrassment to the system, but kudos to the WSJ for calling out government corruption when it sees it. Here's an interesting line from the WSJ's article today, 8/8/08 (A9):

"Is the federal system well equipped to deal with incorrigible behavior by judges?"..."No, not where the behavior doesn't rise to the level of impeachment."

That's not a good sign. Would America's founders tolerate a government that included virtually unaccountable judges? I don't think so--they would have wanted some substantive difference between a British king and a federal judge. What makes the issue complex is that America's founders also promoted the "separation of powers" doctrine--the Constitutional principle that gives judges their independence--precisely so that federal judges would feel insulated from public opinion and the executive and legislative branches.

I'm not sure how to balance the tension between judicial independence and government accountability. Judicial independence sounds good in theory, but the federal courts' interpretation of the Patriot Act seems to indicate that judges, despite lifetime appointments, tend to move in lockstep with the herd, waiting until abuses are rampant before stopping them. At the end of the day, the newspapers and the media may be the only entities that can keep judges from running amok.

Update on November 10, 2008: from the SJ Mercury News, 10/10/08, John Corvino:

It's worth remembering, however, that the courts follow social trends more often than they set them. When the U.S. Supreme Court struck down laws against interracial marriage in Loving v. Virginia, the majority of states already had repealed such laws.

More on judges and judicial power HERE.