Do we need to do away with judges who aren’t lawyers?

Jazz Shaw Posted at 4:01 pm on June 27, 2017

We’ll take a short break from all of the Supreme Court and health care bill news to tackle something a bit more ubiquitous in nature. Pro Publica has an article out this week which you might want to take a look at if you need something new to be upset about. It deals with judges in the state of New York and the fact that so many of them hold these important positions despite never having gone to law school or providing any proof that they are conversant with the legal system. This has, at times, resulted in a cornucopia of embarrassments, ranging from outrageous rulings which are in defiance of the actual law to malfeasance in their personal lives leading to forced resignations.

That some judges in New York state are not required to be lawyers, or to have any formal legal training, has been a little-understood fact for much of the last century. It has, on occasion, drawn some notice. In 2006, The New York Times published a broad and damning series on the work of what are known as town and village justices, some 2,000 or so of whom hold court in the state. It made for remarkable reading:

“Some of the courtrooms are not even courtrooms: tiny offices or basement rooms without a judge’s bench or jury box. Sometimes the public is not admitted, witnesses are not sworn to tell the truth, and there is no word-for-word record of the proceedings.

Nearly three-quarters of the judges are not lawyers, and many — truck drivers, sewer workers or laborers — have scant grasp of the most basic legal principles. Some never got through high school, and at least one went no further than grade school…

The American Bar Association published a study on this subject back in 2011 in which they found that you can be a judge with essentially zero legal training in 24 states. Efforts at passing legislation to require some sort of formal training have largely fizzled because voter are, for some reason, resistant to the idea. (In New Mexico they did manage to up the qualifications to say that you have to have a high school diploma, finish eleven days of “judicial training” and have a mentor appointed to you.) And let’s keep in mind that you don’t actually have to know anything about the law to get on the Supreme Court if you can convince a president and enough senators that you’re a swell guy or gal. Above the Law published a great article on the subject a few years back.

We recently wrote an article for the Washington Post in which we debunked five myths about the Supreme Court confirmation process. One myth that we could have added to our piece: that you need prior judicial experience, or at the very least a law degree, to sit on the Court.

The Constitution does not specify any particular professional or educational requirements for serving as a justice of the high court. In fact, unlike presidents or members of Congress, Supreme Court justices do not even need to be over a certain age. In 1811, the brilliant Joseph Story was appointed to the court at the tender age of 32 — a veritable legal Doogie Howser.

Many judges in various states are elected, so the selection of who may decide your fate in court is essentially boiled down to a Vox Populi, Vox Dei situation. The New York State Supreme Court has hundreds of judges (it’s a very different structure and the United States Supreme Court) and they are all essentially selected by county political party leaders. The point of all of this is to ask the question, do we need to change this system?

Should you be able to be a judge without any formal training in the law and with nobody able to see if you know the first thing about it? Simply saying that the people will judge the credentials of the candidates and make the best choice is a rather hollow response when you read that Pro Publica piece I linked above. But if it’s that much of a potential problem, why are we so opposed to mandating some form of training and certification?

One thing which comes to my mind is an instinctive tendency to rebel against the idea that some “elite” who speaks mostly in a dead language should be the only one allowed to define not so much “legal vs illegal” as right vs wrong. We bring in totally untrained people to sit on juries – supposedly our peers from the common stock – to determine guilt and innocence. Why shouldn’t a judge be someone who is more open to “common sense” if any such thing still remains in the world? But then I look around at a number of specimens of the common stock in my own neighborhood and I’m given pause.

Another argument might be that any person wrongly convicted in the court of an unqualified judge could eventually have that overturned on appeal, presumably by someone with more and better qualifications. I suppose that’s true, but you can run into a lot of trouble in the short term when you’re sitting in the county jail just because the judge didn’t like that look on your face.

I suppose I don’t have a good answer for this one so I’ll toss it out to the crowd. Should judged be elected in the first place? And should there be a requirement for a law degree before you can appear on the ballot?