OUT OF ORDER:
Arrogance, Corruption, and Incompetence on the Bench
By Max Boot
Basic Books, 218 pages, $25
On Dec. 14, 1983, then-U.S. Atty. Dan Webb stood before a crowd of reporters to publicly unveil what had been expected for months–the first indictments in Operation Greylord, an undercover investigation of Cook County Circuit Court that was the largest and most intrusive probe of judicial corruption in the nation’s history. For the first time, a judge’s chambers were bugged. Several FBI agents and one former Cook County prosecutor posed as corrupt private defense lawyers to pay bribes to fix cases manufactured by the FBI.
As Webb announced the first wave of indictments, he took great pains to say that though the evidence of corruption in the court system was significant, only a proportionately small number of judges were involved, and he cautioned the public against tarring the great number of honest jurists.
The Greylord prosecutors would ultimately snare more than 100 defendants, including nearly 20 judges –considerably less than 10 percent of the entire Circuit Court judiciary. Still, the damage to the judicial system in the eyes of an already cynical public was con-siderable.
Now Max Boot, an editorial features editor for The Wall Street Journal, offers his take on the American justice system.
The good news: Like Webb, Boot is willing to concede that many fine judges exist, even on the U.S. Supreme Court.
The bad news: The state of the judiciary, according to Boot, is worse than ever.
Unlike Webb’s caution nearly 15 years ago, Boot starts with the presumption that judicial incompetence and misbehavior is the rule. “(B)ad judges will always outnumber good ones” he says, and he sets out to make a case for trying to “curb the consequences of this short-fall by increasing public oversight of judges and paying greater attention to the judicial selection process.”
There is no mistaking the view of the book even before the first word of the first chapter. A foreword by Robert Bork, an arch-conservative former federal appellate judge, begins by describing the subtitle of the book as summing up “a judicial system that is, to put the matter mildly, not working well. All too often, it is not even performing tolerably.” Boot, too, is out front, asserting in the introduction that he has written “a polemic, passionate at times, about what I view as some major failings of the justice system that have gotten far too little attention so far.”
Much of the book attacks judicial activism and the resulting development of case law that is not based, according to Boot, upon the Constitution. This activism, he argues, is to blame for such decisions as Roe vs. Wade, which legalized abortion, and others that expanded constitutional protection to such areas as physician-assisted suicide and gay rights. Judges, Boot asserts, should return to implementing laws made by others instead of creating their own. Activism, he urges, should be left to ridding the courts of frivolous cases.
One of Boot’s targets is the Miranda rule, which is based on a Supreme Court decision and requires police to advise suspects that they have the right to remain silent, that their words can be used against them and that they have the right to a lawyer. Junk it, Boot declares, citing estimates by University of Utah law professor Paul G. Cassell that 28,000 cases involving crimes of violence and 79,000 cases involving property crimes are lost every year because of the decrease in confessions since the Miranda rule was established.
Boot also favors eliminating the court-manufactured exclusionary rule, which limits the use of evidence not properly seized by police. He convincingly argues that the rule has encouraged a form of police testimony known as “testilying” –the presentation of false testimony to cover up procedural improprieties that would otherwise lead to suppression of evidence.
As for arrogance, corruption and incompetence, Boot, like a wrecking ball thudding against a stubborn building, cites examples of judges who let criminals free to commit crimes; judges who took over the operations of schools, prisons and other institutions and nearly broke the taxpayers’ bank; judges who ignored the law because it didn’t suit them; and judges who have allowed “outrageous” liability awards (Exhibit A: The McDonald’s spilled-coffee case).
Disappointingly, Boot reduces the most significant rooting out of judicial corruption in history, Operation Greylord, to a single paragraph. At the same time he gives Judge Brian Duff, who retired from the federal bench in Chicago in 1996, the better of three pages. Among Duff’s sins: a fixation on the use of his middle name (Barnett) so rabid that he refused to accept legal papers not adorned with all three of his names, and using the term “wetback” during an immigration case.
Not that Boot is short on examples of judicial perfidy. Among those noted are former Cook County Circuit Judge Thomas Maloney, who was convicted (as part of a non-Greylord federal probe) of fixing three murder cases, and former U.S. District Judge Robert Collins of New Orleans, who was found guilty in 1991 of plotting to split a $100,000 bribe from a marijuana smuggler.
Cynically–and perhaps accurately–Boot writes, “The only reason more of these scandals don’t come to light isn’t because there’s a scarcity of them out there; it’s because prosecutors are naturally wary of going after judges, who, after all, hold the fate of their cases in their hands.”
