Ed. Note: Following a so-very-Tennessee story about the decisions made by a non-lawyer “judicial commissioner,” the question was posed for debate between David Meyer-Lindenberg and Chris Seaton: Should non-lawyers hold judicial positions? This is David’s argument.
We live in a time of ignorance. This is all the more surprising because, as intellectual tastemakers named Tom keep reminding us, we have more information at our fingertips than we know what to do with.
Nor is the rot limited to the groundlings. Social media, for all its failings, and ongoing access to public figures have done a great thing for American democracy: they showed the country how little those who supply its opinions have in the way of knowledge, consistency and humility. From police spokespeople to pandering politicians, from fraudulent experts to journalists awash in bias, those paid to inform us have done their best to bring public debate into disrepute. We now see credentials with suspicion.
There’s another class of Americans who are, literally, paid to supply opinions. They’re judges, and the backlash against those once considered experts is spreading to the courtroom. The call now is for the professional judiciary, made up of judges who’ve studied law and passed the bar, to make room for laymen on the bench.
And indeed, it’s not hard to come up with trendy, more or less frivolous arguments for why we need non-lawyers in robes. What, in the age of TrumpLaw and prominent judges declaring the law doesn’t guide them, of Chief-Judge-turned-presumptive-Senator Roy Moore and the ABA judicial commission’s flagrant politicization, have lawyer judges done for us? Why, in this age of #disruption, with a new app claiming to revolutionize law coming out every day, do we need judges who’ve sat in a physical classroom and paid to stare at a chalkboard? How is it that, in these progressive times, we still expect judges to attend institutions where one out of every five female students will be sexually assaulted, and dimes are in short supply?
Yet, despite these compelling reasons and the fact that fourteen states permit it, the movement to admit the legally uneducated to the judiciary hasn’t gained much traction. Why? The answer’s that American voters, who (however indirectly) put judges on the bench, are savvy employers. We don’t choose judges for the judges’ convenience. We select them to do a job for us, and it’s in the nature of that job – applying the law – that formal training is essential.
The judiciary, as Alexander Hamilton’s “least dangerous branch,” has little in the way of financial independence or force at its disposal. Instead, it derives its power from its credibility. For judges’ orders to be more than a waste of trees, there must be confidence that the people will impose consequences if the other two branches defy them. And there’s nothing more damaging to confidence in the judiciary than arbitrary and capricious rulings.
By electing and appointing judges who literally haven’t read the rulebook, or don’t understand it if they have, we guarantee a less consistent application of the law. And it is consistency that reigns supreme. When we select judges, it doesn’t matter whether the laws themselves are desirable or just, or whether techniques of judicial interpretation make sense. Those are second-order problems, for the concern of legislators and legal reformers. In our system of constitutionally separated powers, we expect judges to do no more than resolve the disputes before them by applying an established legal ruleset.
What’s even the best-intentioned judge who isn’t familiar with that ruleset to do? He can’t help but substitute some principle of his own devising for what the law demands. And because, as the Internet so richly demonstrates, each layman has his own “understanding” of what the law should be, every uneducated judge will be a prince in his own fief. With no justification for a ruling other than the judge’s feelz, arbitrariness will carry the day. With no understanding of the importance of limiting themselves to the case at hand, judges will usurp authority and decide what isn’t theirs to decide, especially if they’re guided by feelz.
Worse, judicial caprice is a great smokescreen for creeping authoritarianism. If the dirty cop was accused but the layman judge-substitute never held a probable-cause hearing, as in this case out of Tennessee, is it because he’s covering for law enforcement? Or because he has no clue how to do his job and asked himself, “what would the guys on Law & Order do?”
To be clear, none of this is hypothetical. In the fourteen states that allow non-lawyer judges, there are examples upon examples of abusive, tyrannical laymen running their towns like Byzantine despotates. A NYT series on this problem in the backwoods of New York state is full of characters like “Justice” Thomas R. Buckley:
[…] a phone-company repairman who cursed at defendants and jailed them without bail or a trial, state disciplinary officials found. Feuding with a neighbor over her dog’s running loose, he threatened to jail her and ordered the dog killed.
“I just follow my own common sense,” Mr. Buckley, in an interview, said of his 13 years on the bench. “And the hell with the law.”
To hell with the law, indeed. We don’t send future judges to law school to make them wise, just, fair or models of rhetoric. Those are nice side effects, but they’re not critical. We do it so they’ll predictably and consistently apply a certain ruleset, and we do that so we have a stable society where petty kings don’t feel free to execute our dogs. As disappointing as our current crop of lawyer judges may be, and as politicized as the judiciary will continue to be, a lawyer, unlike Mr. Buckley, is less likely to use his bench to kill Fido because he felt like it.
 See pretty much everything.
 Please note that this argument falls into the “more frivolous” category.