Joel Jacobsen

Indecisive trial judges are terrible, but at least you can try to get the last word in.  A relatively dumb but emotionally secure judge isn't so bad: you just have to adjust your approach, like a middle-school teacher transferred to elementary school.  (Crooked judges are in a category of their own.)

I've long thought that the defining characteristic of the really, superlatively bad judge is that he's so dumb he doesn't realize he's not smart. 

But, on reflection, I suspect such judges secretly realize it.  They try to suppress their self-awareness, and expend great effort attempting to prevent others from learning their "secret" - which, as with the classic closeted gay of comedy, is no secret, of course - and those self-evasions, rather than the relatively low IQ, cause the worst problems.

I use "he" advisedly because in my experience the superlatively bad judge is always male.  Perhaps that's coincidence, but I think not.  He approaches each case as an opportunity to intellectually dominate others - something he's incapable of doing without the props of judicial office.  (That's why he wanted to become a judge in the first place.) 

Such judges are usually described as "arrogant" but that misses the point, I think.  The air of arrogance, when married to intellectual incapacity, is just the public acting-out of an interior psycho-drama. 

When a lawyer points out to such a judge that he's wrong, it produces symptoms of panic.  If it were true that the judge were wrong, it would mean that his underlying insecurities are justified, which would be emotionally intolerable, and so therefore it cannot possibly be true that he's wrong.  Rather, the person who tried to convince him of his error is a threat, or even a personal enemy, to be dealt with accordingly.

I was started on this line of reflection by a conversation with a law school friend who practices in one of those states with the funny irregular borders - you know, those weird little squiggly shapes over on the right side of the map.  This friend reported that his state has an appellate judge who is well-known in the legal community for two things: he thinks he's an intellectual, and he's not very bright.

So on the one hand you have the sad specimen, the psychological case study, an object worthy of our compassion.  It must be painful to be trapped inside this judge's skin.  On the other hand, you have a stupid judge imprinting his neuroses on the law of his state. 

My friend reports that this particular judge, while viewed as harmless enough by most of the bar, has developed an interesting reputation among appellate practitioners: his published opinions are full of lies.  When he can't refute the arguments of counsel, he misrepresents those arguments and then refutes the misrepresentations.  When the facts are inconsistent with his position, he ignores them or makes up others.  "When you read his opinions, you need to constantly remind yourself that there's no more than a 50/50 chance that he's describing the case honestly."

The judge is running little risk of having his lies exposed because most lawyers reading his opinions (and no one but lawyers will ever read them) know nothing about the case except what the judge himself has revealed.  The only lawyers in a position to expose his lies fall into one of two camps: those who aren't going to risk their client's victory by complaining; and those whose complaints would sound like sour grapes - and would almost certainly provoke retaliation.  (Bad judges hold conscientious counsel's clients hostage in that way.)

In theory, the other judges serving on the appellate panel could check this judge's lying.  But why would they want to?  What's in it for them?  As Judge Richard Posner has pointed out, appellate judges benefit in multiple ways by raising no objections to their colleagues' opinions.  Going along to get along is rewarded by increased leisure, while scruples only mean extra work.  

Perhaps even more importantly, passivity maintains cordial relations among colleagues.  If Judge X points out that Judge Y has misrepresented the facts, Judge Y will retaliate by dissenting from Judge X's next opinion, forcing Judge X to write crabbing footnotes in rebuttal, and so on, until someone boycotts the annual party and the feud becomes a real drag for everyone who works at the court.

You have to decide which is more important: justice for strangers, or a comfortable workplace for yourself.  (Whenever an appellate judge starts talking about "collegiality" on the court, pay attention, because it's a coded confession: he or she is admitting that the judges run the court primarily for their own benefit.) 

Professor Anthony d'Amato once published a paper called "The Ultimate Injustice: When a Court Misstates the Facts."  I think there are plenty of reasons why judges lie (which is what the professor means by "misstates the facts").  Bribes are a powerful incentive, and so is ideology, or friendship to one lawyer or antipathy to another.  But the psychological processes I've described are, I think, the single most common reason for judicial lying.  

After all, what better job than judge for the person who needs reassurance that he's not the intellectual mediocrity he secretly knows himself to be?  The fawning obsequiousness of lawyers provides an oxygen line of reassurance. 

And what better job than appellate judge for the person who feels a psychological need to win every argument but lacks the intellect to win any?  He can pretend to win the argument by lying about the facts of the case and misrepresenting the arguments of counsel, and he can then enlist the entire apparatus of the judiciary to make his pretense seem real.  And for such a superlatively bad judge, the simulacrum is the closest he's ever going to come to the real thing, so of course he seizes every opportunity to experience it.

It's just too bad he can't simulate in private.