288. Transparency

How corrupt is government in America?  If you ask Americans, the answer is: Not so clean.   Transparency International's Corruption Perceptions Index is a sophisticated statistical melding of various surveys intended to measure public perception of corruption in governments around the world.  In the latest edition (click on the "media pack" link), the United States ties for 20th place with Chile and Belgium, just ahead of Spain, Barbados, Estonia and Malta -- the last of which has been the scene of a long-running, fairly spectacular judicial corruption scandal.  (See post 71.)  

We're behind all the Western European nations except Spain and Portugal, and they're nipping on our heels at # 23 and # 26, respectively.  Well, Greece is in 54th place, but that dismal score tends to confirm the geographical point that, while Greece is the source of Western European civilization, it's not really part of Western Europe. 

In their most recent report, which focuses on corruption among judges and their staff, TI tried to tease out perceptions of corruption in the judiciary as opposed to the government as a whole.  After all, we all know that cops and lawyers can be paid off.  "Can judges and court staff take comfort from the hypothesis that respondents often think of lawyers and police when asked about judicial corruption, and not the actual arbiters of justice?  According to this special edition of the Global Corruption Barometer, the answer is 'no.'"  [page 12]

When asked specifically about corruption among judges, Americans rank their judges just slightly more corrupt than those of ... Greece.  (See post 215.)  We're only three places ahead of Romania, a nation that is constantly in the news for its corrupt judiciary.  We're behind Kenya, Colombia, the Philippines, South Africa and Italy.  [page 13]

How is that possible?  Well, methodological flaws provide one obvious explanation, although I would have to think that the semi-science of polling is probably more developed in the United States than anywhere else in the world.  That is, I'd be more inclined to suspect distortions in surveys conducted in, say, Colombia, with its American-sponsored low-intensity civil war, than those conducted in such a thoroughly market-segmented population as ours.   If so, that means the international comparison might be off, but not the percentage of Americans who perceive their judiciary as corrupt.

Another explanation for public perception of judicial corruption seems at first comforting, and that is: Americans have much higher expectations of their judiciary.  For instance, only 2% of citizens of the United States and Canada report paying bribes to judges, which is twice as high as the number of bribes reported in Western Europe (including poor old Greece) but much lower than the numbers in every other geographical region.  [Page 11, table 1]  So when Americans describe their judiciary as corrupt, they're not necessarily talking about corruption in the crude -- and filmable -- sense of cash in an envelope.

TI says the four problems most commonly identified in country studies of judicial corruption are the following:

1.  Judicial appointments  Failure to appoint judges on merit can lead to the selection of pliant, corruptible judges
2.  Terms and conditions  Poor salaries and insecure working conditions, including unfair processes for promotion and transfer, as well as a lack of continuous training to judges, lead to judges and other court personnel being vulnerable to bribery
3.  Accountability and discipline  Unfair or ineffective processes for the discipline and removal of corrupt judges can often lead to the removal of independent judges for reasons of political expediency
4.  Transparency  Opaque court processes prevent the media and civil society from monitoring court activity and exposing judicial corruption.  [Executive summary page 4]

All four of these problems are abundantly present in the American judicial system, though not always in the sense intended by TI.  Many details are much different here than in most Third World or Newly-Independent countries.

As for number 1, TI devotes a special section to the role of campaign contributions in American judicial campaigns [pages 26-31], and no one can seriously doubt that many contributions are the products of lightly-disguised extortion.  Judicial elections encourage gangster judges, allowing those so inclined to use their judicial power to run protection rackets: "Nice business you got here.  You must be proud.  What a shame that you got tangled up in that bet-the-company litigation.  Incidentally, I'm holding a fund-raising event next weekend."

Unfortunately, the only alternative to judicial elections that anyone in America has figured out is back-room political deals, in which wannabes pay for their nominations by contributing large sums of money to prominent politicians or otherwise making themselves politically useful.  (See post 235.)  The late Judge Richard Arnold, for instance, who since his premature death seems to have apotheosized into a reincarnation of Learned Hand ("the greatest judge never to serve on the Supreme Court"), lost two congressional races before taking a water-carrying job with Arkansas Governor Dale Bumpers, who then went to the U.S. Senate, from which post he could boost his aide into a federal judgeship. 

It doesn't make Arnold any less distinguished a judge to acknowledge that he acquired the opportunity to distinguish himself only by first paying considerable political dues.  Nor does it denigrate him or any other federal judge to say that the way we pick our federal judges is nothing fancier or more edifying than Andy Jackson's spoils system.  (See post 85 and post 165.)

As for number 2, whether or not federal judges are underpaid in any realistic sense doesn't matter: they have a Chief Justice of the United States telling them they're so drastically underpaid it's a "constitutional crisis."  New York's judges have apparently been driven insane by their low pay - they're seriously talking about filing suit against the legislature.  It must be said, however, that some of the state's non-lawyer magistrates are paid peanuts.  (See post 172.) 

As for number 3, dealing with judicial discipline – Well, it can be arbitrary and political, even if the politics involved are more refined than a simple question of which party one belongs to.  (See post 286 and post 287.)  Judges at the top of the heap are immune from ethical rules, provided only that they avoid getting convicted for major felonies.  (See post 198.)  Judges control the system for professional discipline of lawyers and use that to their advantage, suspending or even disbarring lawyers who expose judicial bribe-taking.  (See post 12.) 

And then we get to number 4.  The American judicial system is thoroughly opaque.  Every lawyer knows that newspaper accounts of judicial proceedings are generally uninformative to the point of being misleading.  You can read a lengthy article without ever finding out what actually happened.  Partly that's because journalists are ignorant or biased, partly that's because lawyers won't speak candidly about their cases because their job is to spin, but mostly it's because judges want it that way. 

The ever-entertaining New Jersey Supreme Court came right out and said it: "In an ideal world a free press would seek to foster fair trial rights by not circulating inherently prejudicial publicity at least during a time of trial."    That is, in an ideal world, a free press would not exercise its freedom.  Citizens would have no right to know what their government was doing (or failing to do) on their behalf "at least during a time of trial" and maybe the rest of time, too.   After all, what goes on in the courtroom is so extremely important to society that society needs to be kept in the dark about it.  (Think Dick Cheney and you get the idea.  Almost every practice of the Bush Administration that liberal intellectuals describe as trampling on the Constitution has its precedent in the judicial branch.  See post 261.)

But the most pervasive source of corruption in the American judiciary escapes TI's generalizing list, for the simple reason that our judicial system is so much more developed than those of most developing countries.  Judicial dependence in the sense intended by TI -- political bosses telling judges how to rule -- is hardly unknown in America, but I don't think anyone could seriously believe it's nearly as pervasive here as it is in many other countries.

Our judiciary is very independent.  But that, by itself, is neither a good nor a bad thing.  It depends on: Independent from what?  The biggest source of judicial corruption in America is judges' independence from democracy and from the law itself.  When "the law" -- and, in particular, "the Constitution" -- means nothing more than what a judge or group of judges says it means, we have passed from judicial independence to judicial autonomy.  We are returned in time to 1775, to an America ruled by a monarchy resisting the very idea of popular sovereignty.

Comments

[Steve]

I understand your point about judicial pay, but I've always wondered whether the pay is that bad. At $165,000+, district court judges are making a modest wage, not great, not terrible either. But let's be frank here: No one becomes a judge for the money; it's all about power.