Should Judges Face Consequences for Their Bad Decisions?
The ivory tower where judges live is no longer hospitable to our democracy. They must be held accountable for their actions.
In America, we have two types of judges. The first type work at the federal level. They receive lifetime appointments subject only to being impeached, which is exceedingly rare. Some would argue the threat of impeachment is a consequence federal judges face even though only eight judges have lost their jobs via the impeachment process. The second type work at the state and local level. They mostly are elected by voters. Some would argue that periodically facing reelection/retention elections allows voters to hold them accountable for bad decisions even though fewer than 1% of judges lose reelection/retention elections. I think both arguments are a load of bunk because impeachment is a very high bar for the former and incumbency is a very strong aspect for the latter. Plus, both impeachment and reelection ignore the reality of what might happen in a single case in which a losing party or victim has few means to push for accountability.
The issue of judicial accountability is front and center now because of how many federal district court judges are recklessly ignoring the U.S. Supreme Court to issue nationwide injunctions. This judicial abuse follows on the circus-like judicial lawfare proceedings against Donald Trump overseen by New York Judges Arthur Edgoron and Juan Merchan. It isn’t just political decisions that seem out-of-whack. In dealing with criminals, judges appear to be issuing sentences based on their personal political views, too. For example, Supreme Court Justice Brett Kavanaugh’s attempted assassin Nicolas Roske received a very light eight-year sentence despite the U.S. Department of Justice asking for thirty-plus years. Roske tried to kill a Supreme Court Justice to impact the Dobbs decision overturning Roe v Wade, thereby making it not just an attempted political assassination, but also an act of terrorism. Similarly, two of the ten thugs who beat up Edward “Big Balls” Coristine for trying to protect a woman they were assaulting only got probation. In still other cases, including the recent murder of Iryna Zarutska in Charlotte, Americans are being hurt, raped, and killed because judges are giving hardened, repeat violent offenders light sentences.
The judges know that, short of impeaching them, they are immune from suffering ANY consequences for their actions. So, if a party has to spend millions to get a lower court’s bad decision corrected, too bad. They are simply out of the money. Eric Trump recently noted that the Trump Family has spent over $400 million to defend themselves and their businesses from the Left’s lawfare targeting them. Judges should see being reversed as something to avoid at all costs, but they don’t. If someone who was sentenced too lightly gets released and hurts or kills someone, the offending judge could care less. The judges trying to stop Trump from executing his executive branch powers know they can act with impunity, so the Left is now engaging in no-holds-barred lawfare as often as it can.
Given the enormous responsibility they hold and power they wield, it seems to me we should demand a higher level of personal responsibility and accountability by judges for the things they do as judges.
This issue is personal to me. In what became one of Ohio’s longest and most expensive divorces, I had to deal with a judge that issued a decision so terrible that it not only was reversed by the court of appeals but also earned unanimous rulings by a very diverse set of judges. As background, my conservative political views are well known in Ohio political circles, as is my support of Donald Trump and my strong opposition to former Ohio Governor John Kasich. When we were assigned one of his key allies as our judge in my divorce, we had to think long and hard about whether to move to recuse her given that I was one of a handful of people who stopped Kasich’s presidential runs—even being featured in Vanity Fair referring to Kasich’s “messianic view of himself.” In the end, given the high bar for recusal, we opted to put our faith in the hoped for professionalism of the judge so as not risk angering her via a recusal motion.
Boy, did we get that call wrong! After years of endless motions and delays and a lengthy trial, the trial judge issued what had to be the most one-sided decision in Ohio domestic court history. Any objective person who read it was shocked by how we lost on every possible issue. After analyzing the decision, we opted to appeal three key elements. First, contrary to clear Ohio law, the trial judge exempted my ex-wife’s equity earnings from both spousal and child support. The equity portion of her pay represented the majority of her annual compensation. Next, based on zero evidence, the trial judge also excluded my ex-wife’s annual cash bonus from child support, bizarrely claiming that the parties had agreed to exclude it. Lastly, the trial judge awarded my ex-wife 40% of all proceeds from a book I had not written, that didn’t exist, and that I only had considered writing after the divorce was final claiming it was a “marital asset.” How a nonexistent things can be a marital asset was mind boggling. The trial judge also only awarded five years of spousal support on a nearly eighteen year marriage even though she had previously awarded a longer period of time (5.5 years) on a shorter marriage of fifteen years in a very similar case with the only difference being the parties’ genders were reversed (i.e., the higher earning party was male in the other case).
The appellate court judges found that the trial court’s actions were way off base. Keep in mind, despite knowing my political views which could have pushed them to affirm her ruling, an appellate court comprised of a black female Democrat, a Jewish male Democrat, and an Establishment white male Republican ruled unanimously in my favor on all three issues—3-0, 3-0, and 3-0. Here are some of their findings:
“…we find it UNFAIR and INEQUITABLE for the trial court to completely exclude this form of compensation [stock] from appellee’s gross income for purposes of spousal support. By permitting appellee to retain ALL of her future LTIP bonuses as her separate property, the trial court provided a WINDFALL to appellee.”
“Our review of the record reveals NO SPECIFIC ORAL OR WRITTEN stipulation or agreement [to exclude Plaintiff’s cash bonus from child support].”
“the trial court’s reliance on a non-existent agreement between the parties resulted in a child support determination that LACKED A RATIONAL BASIS OR A SOUND REASONING PROCESS to support it. Furthermore, because the trial court erroneously relied on the alleged agreement, the trial court FAILED TO ‘LITERALLY AND TECHNICALLY’ follow the statutory requirement IN ALL MATERIAL RESPECTS.”
“the trial court erred when it failed to include all of appellee’s income in making the calculation of child support pursuant to the basic child support schedule and the applicable worksheet. The trial court also gave no indication in its judgment entry that it was deviating from the amount of child support calculated pursuant to the basic child support schedule and the applicable worksheet. Nor did the trial court make any expressed determination that the amount would be unjust or inappropriate and therefore not in the best interest of the child. The trial court made no findings of fact supporting that determination, other than the erroneous finding that the parties agreed to exclude appellee’s yearly bonus and stock awards from the calculation.”
“the RELATIVELY SHORT duration of the spousal support award in light of the length of time the parties were married.”
The appellate court’s verbal repudiation concluded with them returning 100% of the proceeds from my unwritten book to me. That was important because, as it stood, the trial judge had limited spousal support to just five years, but then created a property right in a non-existence book that me and my estate would have had to pay to my ex-wife and her estate for as long as the book earned money in perpetuity (I haven’t written the book yet, so it still doesn’t exist). That inequity made no sense in any universe.
The point of sharing this information is to illustrate the problem with judges getting things very wrong. It cost me another $60,000 to be vindicated by the appellate court. Despite being so far off the mark, the trial judge wasn’t docked pay, reprimanded, or forced to pay my extra legal fees. Thankfully, she was defeated in her next election, but that occurred because Franklin County became so heavily Democrat, not because of anything she did. Given how erroneous her decision was, she should have had some negative repercussion for clearly not analyzing the facts, interpreting the law, and issuing a decision grounded in both.
So, how should we reform the judicial system to insert personal responsibility and accountability on judges? How do we ensure judges have skin in the game and put their own money behind their legal mouths?
One reform would be to award parties unanimously vindicated on appeal the right to garnish a small percentage of the erroneous judge’s pay to recover legal fees. Such an approach would greatly incentivize judges to “get it right” instead of acting carelessly with the power they hold. This approach also could apply to appellate court judges who are unanimously reversed by the highest court. Imagine how many cases could have been prevented had the federal Ninth Circuit Court of Appeals, which is the most reversed court of appeals in America, stopped using its venue to issue political decisions wholly divorced from the Constitution.
Another reform would be to allow victims and their families harmed by criminal defendants who are issued light sentences by activist judges and who then harm or kill someone upon release to sue the judge for negligence in exercising his powers. Judges shouldn’t be allowed to “wash their hands” of the criminal defendants who come through their courts and who they treat too lightly because of their personal political views. Too many people have been hurt or killed because judges ignored the sentencing laws, thereby letting a hardened criminal back on the streets too quickly.
We also could force all judges to go through an audit every five-to-ten years that analyzes their rulings and records on appeal to determine if they were acting properly and according to the law. Technology now allows us to review all balls and strikes called by Major League Baseball umpires to see how they do in the core aspect of their jobs. We should harness Artificial Intelligence to do the same for judges. Any judge that fell below a certain threshold would lose her job. Getting justice right is one of the most important functions in our representative democracy. Today, too many judges get it grossly wrong.
Lastly, in addition to formal impeachment proceedings, citizens should have a process that allows them to initiate the recall of a scofflaw judge. The bottom line is judges today are far too insulated from the consequences of their decisions. Maybe that system worked when judges operated with more integrity and with fewer political motivations. Today, that system leaves too many Americans left holding an empty bag or burying a beloved family member. In my case, I thankfully had the resources to appeal. Many Americans denied justice don’t, so they swallow the bitter pill issued to them. That isn’t justice; that is plain wrong.
The ivory tower where judges live is no longer hospitable to our democracy. Whether via the above reforms or other ideas, America’s judges must be held accountable for their actions beyond the rarely used impeachment process or less effective reelection/retention process.
Thanks for writing this!