Debate: Ah, What Do Lawyers Know Anyway?

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.[1] 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?[2]

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,[3] 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.

[1] See pretty much everything.

[2] Please note that this argument falls into the “more frivolous” category.

[3] Note that Richard Posner supports non-lawyer judges. A more devastating indictment of the idea is hard to imagine.

26 comments on “Debate: Ah, What Do Lawyers Know Anyway?

  1. Jeffrey Gamso

    I notice that neither of you guys pointed out that there is no Article III requirement for judges or justices to be lawyers.

    Of course, the framers didn’t give us a perfect document, but then there’s also been no licensed-attorney’s-only amendment.

    Which doesn’t answer the question, but then, well . . . .

    1. David Meyer Lindenberg Post author

      Considered pointing that out, but I decided it was no more material than Chris’ mention of Davis v. Montana. If we had a constitutional requirement, there’d be no debate. It’s really a policy question.

    2. SHG

      Odd how notions that were so obvious that they never seemed necessary to be put into writing are on people’s minds lately. Go figure.

    1. David Meyer Lindenberg Post author

      “How dare David illustrate 250-year-old political philosophy with some contemporary examples? What a maroon.”

      1. losingtrader

        “How dare David illustrate 250-year-old political philosophy with some contemporary examples? What a maroon.”

        Gee, I thought I read “macaroon.”
        I was getting hungry. Damn you.

        We already have uneducated judges. I’ve been one three times.

            1. Richard Kopf

              SHG,

              What about a free offering of really, really, really cute and really, really, really expensive puppies?

              All the best.

              RGK

  2. grberry

    David: “We don’t send our 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.” I question whether any of those are side-effects of law school. We certainly see and read enough contrary evidence. And I would say that wise, just, and fair ought to be requirements of judges.

    Chris used the example of traffic court. The YouTube channel “Caught in Providence” (>100K subscribers, most videos 2K to 30K views, but some viral and with way more views) shows that we appreciate judges who have a heart and compassion, and forgive instead of just blindly following a rule book. Judge Caprio is a lawyer and has compassion.

    We need to add to our judicial selection and retainment criteria wisdom, justice, fairness, and compassion.

    1. David Meyer Lindenberg Post author

      We certainly appreciate wisdom, justice, fairness and compassion in government, though no two of us agree what those qualities look like in a person. But – pointedly – none of this stuff has a place in the judiciary. It’s the legislative’s responsibility to enact the laws we desire. As I’ve argued in the past, the executive must faithfully enforce the law, even when doing so means a bad short-term outcome. Likewise, the judiciary must keep on its side of the fence and not decide with an eye to what judges think is the best outcome. For either branch to try to usurp the legislative’s role and “govern wisely” invites chaos and arbitrary rule, not a good thing if you value prosperity and liberty.

      The thing is, an appreciation of a judge’s role is a critical part of a legal education. The idea that judges should take it upon themselves to fix all the injustices is anathema to the American idea of limited government. Lawyer judges already fall plenty short here, as can be seen in SCOTUS-fabricated doctrines like qualified immunity, designed to make life easier for the government. But as bad as lawyer judges may at times be, at least they have an appreciation of what they’re supposed to do. Throw that out the window and there’s no hope.

    2. SHG

      There are at least two parties to cases, each one in complete agreement that the judge should be wise, just, fair and compassionate. And these parties sit at opposing tables.

      1. Patrick Maupin

        Counterexample: uncontested probate.

        (Unless, of course, you consider the judge to be one of the parties.)

  3. SPM

    I would say that this post highlights a critical problem, but not exactly in the way the author intends. If we want judges to follow the law, well, then judges must slavishly follow the law. If the goal instead is to be “fair”, or “do what is right”, then lay folk can do that just as well or better than lawyers.

    The US Supreme Court is “sui generis.” However, we see it at the trial court level as well. A recent opinion from the WV Supreme Court.: http://www.courtswv.gov/supreme-court/docs/fall2017/17-0156.pdf A man was convicted of delivery of a controlled substance within 1,000 feet of a school and one count of conspiracy. With a recidivist enhancement he was sentenced to 2-15 years incarceration. However, immediately prior to that he had been held in jail for 202 days while waiting trial on a domestic battery charge. At trial on this charge he was found not guilty. The judge later awarded him credit for the 202 days held in jail on the drug sentence for the time he was held in custody on the charge where he was found not guilty on the basis that it was “only fair.” The WV SC overturned ruling that such an action was contrary to the clear language of the relevant statute.

    A comment by Judge Posner is also on point “The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?” The next thing, he said, was to see if a recent Supreme Court precedent or some other legal obstacle stood in the way of ruling in favor of that sensible resolution. “ https://www.nytimes.com/2017/09/11/us/politics/judge-richard-posner-retirement.html

    If that is approach, then there is absolutely no reason that a lay person cannot figure out what the “sensible” resolution is and then have a law clerk come up with a plausible reason to support it. If judges act like lawyers, then lawyers will be judges. However, if judges want to be Solomon, then that doesn’t require a legal education.

    1. David Meyer-Lindenberg

      Serious question: did you skip from the first two paragraphs to the last two, just for the giggles? I even put in a link to SHG’s story on the Poz and his brilliant approach to judging. Actually, two if you count the footnote.

      1. SPM

        Yes, I did read the entire post. However, the primary point in my post was slightly different. The author argues that judges should be lawyers, even if some lawyer judges are idiots. I do not disagree. My point is that whether that is the ideal or not, if judges do not act like lawyers, the public will be more likely to support non-lawyer judges.

        1. SHG

          As explained above, the issue here is lawyer v. non-lawyer, not idiot v. non-idiot. Of course lawyers can suck, as can non-lawyers, but this debate focused on a specific issue. As for the orthogonal “idiot” question, it should be considered as ceteris paribus.

    1. Fubar

      I use law to repair busted pipes,
      I do it with two legal swipes:
      First, enjoin them from leaking,
      Then, sealed judgment, no peeking,
      So plaintiffs can’t have any gripes!

  4. neoteny

    we expect judges to do no more than resolve the disputes before them by applying an established legal ruleset

    Which is impossible for several reasons as demonstrated by John Hasnas in his essay titled The Myth of the Rule of Law (originally published in Wisconsin Law Review 199 [1995]; can be found on the net).

    1. SHG

      Imagine how much more useful this comment would be if you wrote “is impossible because X, Y and Z, as demonstrated by…,” instead of merely referring to a law review article no one will read.

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