Tuesday, June 5, 2018
Out Of Order: Arrogance, Corruption, And Incompetence On The Bench First Edition Edition by Max Boot (Basic Books)
A one-stop store of conservative complaints about the judiciary; in trying to eliminate lemons, the author mixes oranges and apples. “We need more public criticism and exposure to hold judges accountable for their actions,” says Boot, who is editorial features editor for the Wall Street Journal. Citing numerous examples culled from his years of reporting, he takes aim at what he identifies as judicial impropriety: favoring cronies, following ideological prejudice instead of legal precedent, permitting juries to impose enormous liability judgments, going easy on criminal defendants, usurping executive and legislative powers, refusing to follow the voters’ will, and engaging in financial corruption. He lays blame on the judicial selection process, which rewards political loyalty above legal competence; at politicians who give judicial nominees too little scrutiny; and at the voters, who seldom pay any attention to elected judges’ performance. Although Boot makes no secret of his rightward tilt (he thinks Brown v. Board of Education was bad constitutional law, wants to discard the exclusionary rule on illegally obtained evidence, and seems never to have met a corporate defendant he didn’t like), he’s intellectually honest; for example, he criticizes conservative judges who have struck down affirmative-action programs crafted by state governments, and even rebukes some of the ideas propounded by Robert Bork, who wrote the book’s foreword. But his foundation for lumping together examples of utterly different behaviors—that the courts “are trying to provide a remedy for every conceivable ‘victim’ “—is weak. In the end, the only element tying together the judge who takes bribes and the one who gives pro-plaintiff jury instructions in a product-liability case is simply that Boot dislikes both forms of conduct. Neither a screed nor a “balanced” report, this well-written and often witty book should give zest to those who agree with Boot’s biases and food for thought to those who disagree.