By the end of the link-text I thought, "I wonder if there's a law firm willing to sink a few tens of thousands into making sure they always have the same judge?" My immediate follow-on thought was, "I would hate to argue a case in front of a judge who knows they're the only one to whom I didn't donate," so I guess it would make sense to be more surgical with it.
So judges with the richest enemies will get the most money? This doesn't sound bad.
As Eggplant has it.
It's rare that the phrase "I'd pay good money not to have to do that again" describes a feasible option, but it would be nice to think it did.
What if you have a case involving two extremely rich parties, who instruct their lawyers to investigate the records of all the judges on the relevant circuit, and then between them manage to rule out the whole lot?
3
By the end of the link-text I thought, "I wonder if there's a law firm willing to sink a few tens of thousands into making sure they always have the same judge?" My immediate follow-on thought was, "I would hate to argue a case in front of a judge who knows they're the only one to whom I didn't donate," so I guess it would make sense to be more surgical with it.
Are they going to change the judge or make your client get new counsel? I would think the later.
5 is a good point. But not all judges in NY are elected - the Court of Appeals judges are appointed. Maybe the case would just pop straight to appeal?
6: Getting new counsel wouldn't help if it was the client that had given the money though.
I like the Missouri plan for judicial selection.
6
Belatedly following the link I see it is the judge that is supposed to change. This does have potential for abuse, if for example your firm normally represents banks in foreclosures and knows some judges are picky about the paperwork you can knock them off your cases with a relatively small investment. There is some loophole language about "necessity" or the "interests of justice" but this does not seem totally thought through.
6: People have a right to counsel of their own choosing. Short of an unwaivable conflict between counsel and client, they can't make you get new counsel.
Yet *another* reason for implementing large-number-random-lot as the default solution to the problem of authority!
11: In some criminal cases, I think I've read news reports where the judge basically says "You're too stupid to represent yourself or too smart in trying to set-up grounds for an appeal. Get a real lawyer."
13: The court will sometimes appoint "standby counsel" for a pro se defendant. Counsel is then available to advise, but the defendant still calls the shots. if a defendant is fit, and knowingly and voluntarily waives the right to counsel, the ddfendant has the right to go pro se.
Could a big corporate firm just give money to every NYS judge, and then advertise to clients "hire us, and you can't be sued in NY state courts?" I'm guessing that falls under the "necessity" or the "interests of justice" loopholes, but still. Given the potential for abuse, this seems like a horrible idea.
Not really related: I'm annoyed that PA uses the title "district judge" for what normal people would call a magistrate or justice of the peace.
The right to counsel of your choosing isnt absolute.
Moreover, clear judge shopping raises some potential ethical issues for the lawyers.
17: it's pretty damned close to absolute.
As near as I can tell, all vodka takes pretty much the same after you add mixers. Don't pay extra for Absolut.
20: I don't know NY state courts very well, but I sort of doubt the appellate courts are equipped to handle trials.
21: Emotionally, they are very prepared for all sort of trouble. Legally, I've never heard of an appellate court handling that kind of question outside of some very narrow circumstances.
You'd think the obviousness of the problems caused by this solution to another problem would point New York to the obvious solution to both problems - don't have elected judges.
23: I am assuming, based on no evidence whatsoever, that the habit of electing judges has something to do with people wanting to be nasty to black people, because pretty much anything otherwise completely inexplicable in US politics turns out, at the root, to have something to do with people wanting to be nasty to black people (eg: felon disenfranchisement, the existence of the Senate, the peculiar shape of Illinois' 4th district, etc.)
In the UK the root cause is generally to do with class.
24: Yes, that is really beside the point, especially in the northern states. Also, the Senate doesn't fit with your other examples.
The introductory "Yes" is to "based on no evidence."
I endorse 23 and 24.
Of course you could greatly simplify things by forbidding lawyers and law firms from donating to judges. That restricts a lot of the strategies suggested above (and the one in the OP). You still have issues with clients donating, and smart ones with lots of money could and a high likelihood of being sued (I'm thinking of Wall Street firms in particular) could make defensive contributions, but if it was blatant enough I'd think it would backfire.
The limiting case of defensive contributions is a judiciary composed entirely with the worst judges, since they are the ones getting the most money, and money does influence elections. There might be a nice route to a cushy sinecure for someone willing to campaign on a platform of always ruling against the wealthiest defendant.
There are a lot of things that people in America don't have any idea are different in other countries, and if we did, we'd realize how stupid they are. Top on the list are drug commercials on TV, and judges being elected.
25: OK, what's the reason then? Judges aren't elected in other countries.
Of course you could greatly simplify things by forbidding lawyers and law firms from donating to judges.
I haven't looked into this, but I bet there's a First Amendment problem with a prohibition like that.
Generally, I'm being silly. It would take enough money to knock out enough judges to be really useful in any kind of corrupt way that it wouldn't be practical for anyone but the kind of big firm that doesn't want to look shady. It's unlikely anyone would do this at all, and anyone who did probably wouldn't be doing more than cherrypicking one or two judges to protect themselves from. (He's not in the state courts, and not elected, but if the tobacco companies could have made it impossible for Judge Weinstein in the EDNY to hear cases concerning them, it would have been hard to resist.)
30: The U.S. has a ton of elections for things that aren't on the ballot in other countries. In some places, you even vote for the clerk of the courts. I'm not aware of any states that have totally removed public input from the state courts. The shift is to having a vote for the retention of appointed judges, not to completely remove public input.
It would take enough money to knock out enough judges to be really useful in any kind of corrupt way that it wouldn't be practical for anyone but the kind of big firm that doesn't want to look shady.
I don't know if there's an equivalent firm in the US, but I can easily imagine that if the situation were happening over here, a firm like Carter Ruck might use it to make sure their clients were heard by Justice Eady. Note to Carter Ruck lawyers reading this - this post is opinion and not in any way an actionable statement of fact.
Surely mob lawyers and their corporate equivalents specialising in clients with dodgy reputations wouldn't be too concerned about looking shady.
How many judges are there in New York? How much money are we talking about?
Hang on, I think there's a flaw with this. According to Wikipedia, NY Supreme Court Justices are elected to fourteen year terms, and the bill only bans judges who've received contributions within the last two years, so assuming their elections are evenly distributed, one can only disqualify 1/7 of them.
I'm beginning to think this bill will have little impact on anything. It can't even be abused properly.
I think you need to go through a couple layers of causation before you get from electing judges to being mean to black people. I think the proximate cause of electing judges is the corrupt machine politics of the big cities in the north east and Great Lakes regions. If they didn't originate the practice, they certainly are responsible for entrenching it. Electing judges was and still is one way that white ethnic immigrant groups retain control a branch of the government, which is why depending on where you are you can only be elected judge if you have an Irish, Italian, or Polish last name.
Of course, what is driving big city machine politics? The desire of whites to be in control of cities that have become majority black because of immigration from the South.
35: are elected judges prohibited from accepting campaign contributions in non-election years?
37: Judicial elections were happening well before that migration and in many rural areas. Whether it has lasted longer in some regions may be related to race, but I still don't see how you elect judges if you can't elect city council members.
Also, perhaps because I'm a member of two of those white ethnic groups you mention, I feel it should be noted that there was also a need for protection from other (white) groups that lead to the machines.
It pains me to say this as a patriotic American, but while 24 may be wrong, it's certainly a good guess.
I still don't see how you elect judges if you can't elect city council members.
Judge elections might be lower turnout, so having a few tens of thousands of solid votes could make a real difference. Also they'd be city or even statewide rather than local.
The flaw in the theory is that judges have the right to reject people's campaign donations. It would be pretty funny, actually - no, no, I *insist* you take my donation! no, no, really, I don't want it!
42: Statewide elections operate well outside the city machines in most states because they aren't big enough. New York, I wouldn't know. But, the Pittsburgh and Philly machines aren't the primary actors in elections for state-wide courts. If they were, Republicans wouldn't win so often.
The local machine here does control local judicial elections because of low turnout, but they also control most of city council. (Of course, a few tens of thousands of solid votes will get you a city council seat here.)
The flaw in the theory is that judges have the right to reject people's campaign donations.
And how often does that happen? Half the time, even when some political donor's misdeeds are publicly revealed, the recipient don't turn down the cash.
In state court in California, both sides get one free shot at forcing a judge to recuse him/herself, without having to state a reason (after you use up your free shot, you can seek recusal on on all the usual grounds, like conflict of interest, etc.). This system seems to work pretty well -- mostly, parties don't exercise the right, but it can come into play for really terrible or extremely biased judges. It also provides a metric for some customer feedback: like if a judge in family court is routinely being recused, then the chief judge knows he has a problem and can do something about it.
Seems like a way better solution to the same problem than the NY rule.
NY state courts are really really terrible, IME -- at least, way worse than CA, TX, MA and AZ, which are the other states where I have some experience.
I'd be indignant, but I don't actually have experience in other state courts to compare to, and NY state court practice can get fairly random, certainly.
On the other hand, I think the SDNY and the EDNY are really significantly better (in total, obviously there are lousy judges there and great ones elsewhere) than other federal district courts. The state/federal split in quality in NY is really extreme.
Yeah, it's a different world. I just took a junior lawyer down to get admitted to the SDNY this morning, and was telling her that her state court habits (which properly incorporate a certain freewheeling vigor of argument) needed to be toned way, way back for federal court.
Not all states elect judges, and as an Easterner it still feels deeply unnatural to me. Judges in Massachusetts are appointed. We can vote for something called the governor's council which reviews the governor's nominees, but that's the only input we've got. In Maine, I think that the legislature approves the nominees.
My only experience with Arizona courts was in dealing with a vulnerable elder case. (My uncle was stealing from my grandmother, and my Dad and uncle were trying to get him removed as trustee (putting a bank in its place) and putting her into an assisted living facility. I am clearly biased and don't like the fact that we lost, but I was disgusted by how incredibly crappy the writing was and much more importantly, the high number of ex parte rulings issued during out-of-business hours.
the high number of ex parte rulings issued during out-of-business hours
The the presiding judge issue them as Facebook status updates? Because that would seem particularly egregious.
No, they'd go to a judge who was technically not involved and write something up at 5 on Friday without notifying the other side.
Regarding the right to have counsel of your choosing not being absolute:
See conflicts of interest, having to be qualified in the jurisdiction or having the requisite clearances, and the lawyer available for the trial date/schedule.
ie: the rocket docket:
"Sorry judge, but my schedule doesnt permit that date."
Judge: "too bad, I guess your client needs to find a lawyer whose schedule is available for this case."
CA, TX, MA and AZ, which are the other states where I have some experience
Jurisdiction slut.
This post inspired me to re-watch Jury Duty. SO FUNNY!!!
I just left court, and am seriously considering a large campaign donation. A jackbooted government thug can't get a fair shake in this man's system.
55: I already mentioned unwaiveable conflicts. The requirement that the lawyer be authorized to practice law strikes me less as a limit on the right to counsel of one's choosing than as a limit on the practice of law. (And IME admission pro hac vice comes pretty close to erasing that limit anyway.) Refusing to continue a trial schedule does not mean the court has deprived a client of the right to counsel of his/her choosing -- if counsel can't adjust his/her schedule, then that's just a matter of counsel of the client's choosing being unable to take the case.
55: I already mentioned unwaiveable conflicts. The requirement that the lawyer be authorized to practice law strikes me less as a limit on the right to counsel of one's choosing than as a limit on the practice of law. (And IME admission pro hac vice comes pretty close to erasing that limit anyway.) Refusing to continue a trial schedule does not mean the court has deprived a client of the right to counsel of his/her choosing -- if counsel can't adjust his/her schedule, then that's just a matter of counsel of the client's choosing being unable to take the case.
(Move to strike comment 60 as cumulative.)
I've linked to this before in the archives, but some polisci folks I know have done research making a very solid case that judicial elections are responsible for a significant "election cycle" of punitiveness--defendants get shafted in election years. I'm too lazy to even read the abstract, but apparently he's looked at the too.
her state court habits (which properly incorporate a certain freewheeling vigor of argument) needed to be toned way, way back for federal court.
Drinking games?
Mocking impressions of opposing counsel?