I was sitting around the other day with a client/friend who has been doing business in China since forever. This person has spent probably 90% of the last thirty years of his life in China and despite his being an American, his knowledge of China business definitely surpasses his knowledge of business in the United States. He was complaining about judges in China and his comment was that about half of them were incompetent.
My response was to tell him that was not so bad.
I have to be really careful here because lawyers talking bad about judges is never a good idea, so let me say that much of what I am going to say has nothing to do with what I have seen, but of what I have heard from my lawyer friends around the United States. Since nearly all of my firm’s work has an international component, we almost always find ourselves in Federal court. Federal court judges are appointed and they are paid pretty well and they typically have two really good clerks assisting them. I cannot remember hearing a lawyer complain about the quality of the Federal judges in our area.
in much of the United States, however, judges are elected and these elections are oftentimes determined based on politics, not quality. When lawyers sit around and talk about judges, we almost never complain about a judge’s politics. What does politics have to do with a breach of contract lawsuit anyway? No, we complain about competence.
My never-reticent, Ohio-burdend and sometimes correct friend, Dan Hull, did a post on his What About Clients? blog on U.S. state court judges, provocatively entitled, Get off your knees: Say something and do something about state elected judiciary. Dan put a picture of Mae West on the post and subtitled it, “Is that a county judge in your pocket? Or are you just hugely happy to see me?”
Hull is characteristically blunt about the inherent problems with elected judges:
Two lousy messages: Judges, like mayors and congressmen, have “constituents”. Justice, like real estate or widgets, is “for sale”.
Think of it like this: Good Crops, Motherhood, the Flag, Andy Griffith, puppies, selflessness, courage (Mae West, above, had lots of it), beauty, truth, a thin Marie Osmond, sweetness, light, replacing state judicial elections with merit-based selection in 39 American states.
As NYC trial lawyer Scott Greenfield and maybe others worry that writers at this site are getting soft and even, well, flitty, we will reach and try here to be frank, and forthright:
The popular election of state judges is beneath:
(a) you,
(b) your law firm,
(c) your family’s dog, and
(d) especially your clients, and especially if you act for businesses who trade nationally or globally.
That institution, favored in a vast majority of states in some form, makes states that still conduct them appear insular and potentially unfair to both American litigants and to non-Americans and their businesses abroad.
* * * *
But elected benches are by nature glaringly “fishy” (i.e., “…dang, Nadine, the campaign money to the judge last year…just don’t seem right…the dog don’t hunt…”) to even the most casual observer in the Midwest or South, and wherever else American horse sense abounds.
Merit-based selection is not perfect. However, it has worked very well for two centuries in American federal courts with a minimum of bad appointments and embarrassments–even if you adjust for the fact that state judges outnumber federal judges (who are appointed for life) by a factor of over 10 to 1.
Generally county-based, American litigation at a state level is already frustratingly local and provincial for “outsider defendants”–businesses from other U.S. states and other nations sued in local state courts–who cannot remove to federal courts, the forums where federal judges can and should protect them from local prejudice.*
American states that still hang on to electoral systems look increasingly provincial, classless, and silly from a global perspective. Merit selection is not perfect–and also poses risks–but it is far better than what most American states currently have in place. It’s time for American states to grow up.
Hull is absolutely right and it would be tough to find a good American lawyer who disagrees with him. Well over half of American judges are competent, but every year state court budgets seem to get reduced and the gap between judge’s salaries and what they could be earning as practicing lawyers seems to widen. This does not bode well for U.S. state courts.
Does China have work to do to improve its judiciary? Heck yes it does. But if you are an American looking at it, please do not compare our courts with theirs as though absolutely everything in the United States is just fine. Because it isn’t.
