Out Of Order: Arrogance, Corruption, And Incompetence On The Bench

By in Court Rules on February 9, 2013

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Hear about the judge who got busted for selling crack? What about the judge who released from jail a felon who then promptly killed a rookie cop? Or the one who ordered a prison to supply its inmates with hot pots?In Out of Order: Arrogance, Corruption, and Incompetence on the Bench, investigative reporter Max Boot documents dozens of stories like these as he blows the whistle on the least publicized, the most destructive, branch of the government—the compelling statistics to support his belief that judges have greatly damaged both the criminal and civil justice systems.Boot criticizes well-known judges like Lance Ito, who presided over the O.J. Simpson follies, and Harold Baer, the New York judge who initially decided to exclude from evidence eighty pounds of drugs because he found nothing “unusual” about a courier fleeing from the cops. He reveals judges who have taken advantage of their office not only for personal gain, but also to gain greater political power.The “juristocracy,” as Boot calls it, has taken over the running of schools, prisons, and other institutions, with disastrous results: forced busing, which has led to white flight from inner-city schools; higher taxes, as judges have ordered more government spending, regardless of results; and greater social divisions, because judges have taken controversial issues like abortion out of the political arena. Rundowns of case after case reveal judges who have routinely overturned popular initiatives without legal right to do so, implemented controversial policies with no basis in law, and put millions of dollars into the pockets of undeserving plaintiffs.Following in the footsteps of the bestselling Death of Common Sense and Slouching Towards Gomorrah, Out of Order is a tightly reported, highly opinionated expose that should set off a national debate about the woeful state of our legal system. It also offers hope, by providing ways to improve the performance of the judiciary and reclaim its original role as servant of the people.
Max Boot, who wrote the excellent “Rule of Law” editorial column in the Wall Street Journal for several years, has written what he admits to be a polemic. Polemic; need not be a derogatory word when the book is informative and entertaining. Out of Order is aimed at the evils of judges. Some of those evils–corruption and drug dealing–are obvious. Others–such as broad constitutional interpretations, desegregation of Virgina Military Institute, and application of the Miranda doctrine–are debatable, though Boot mostly sidesteps those debates.

Having foresworn objective analysis, Boot also admits to a lack of solutions to the problems he identifies. While he proposes a handful of reforms that do little to address what he criticizes, he rejects a wide variety of radical proposals with a few sentences each. Boot suggests more scrutiny of judges through lawyers’ reports and public debate. Left unspoken is the fact that the most prominent public debate of judicial decision-making in the last 12 years involved the author of his introduction, Judge Robert Bork, and came to a result Boot disliked. And Boot’s endorsement of rating judges by lawyers ignores that such ratings have as often resulted in unfair criticism of judges (including one Boot singles out as a good egg) for holding lawyers to strict standards as it has to expose incompetence that remains unaddressed.

So what’s left is a long list of anecdotes, loosely organized by them, tied together only by their common desire to criticize. Thus, Judge Ito should not have let the Simpson trial be overrun by publicity, but a Chicago judge is hit for earthily barring attorneys from talking to the press.

In one chapter, judges have too much power and abuse it; in another, incompetents fill the judiciary because smart lawyers can have more influence by refusing appointments. The reader is to assume that the mere fact Boot has held these judges up to criticism should be enough.

For a more reasoned analysis of the judicial system, see Richard Posner’s The Federal Courts (1996). Those wishing for the polemic can read either Robert Bork’s The Tempting Of America (1991) or Ralph Nader’s No Contest (1996), depending on your preconceived political bent. –Ted Frank

2 thoughts on “Out Of Order: Arrogance, Corruption, And Incompetence On The Bench

  1. 1
    7 of 9 people found the following review helpful
    3.0 out of 5 stars
    Well-written, but superficial polemic, August 30, 2000
    Tung Yin (Portland, OR) –

    Whether you are liberal or conservative, Max Boot’s “Out of Order” is likely to get you mad. Mad because the judicial system is painted as so-out-of-control, or mad because you think Boot is a conservative hack (who writes for the Wall Street Journal’s editorial pages).

    What Boot has done, and done effectively, is gather horrible anecdote after horrible anecdote, organize them in general categories like corrupt judges, incompetent judges, and so on. The picture that he paints is pretty grim: if a judge isn’t on the take, he or she might be plain weak, stupid, arrogant, or deluded.

    But how seriously are we to take Boot’s thesis? While the individual cases that he discusses are (to varying degrees) disturbing, the central problem with this book lies in the fact that the reader is supposed to evaluate a judge based on one case, out of thousands or more that the judge might see in his or her career.

    At the same time, Boot strangely ignores some obvious targets for those who would like to criticize the judiciary. For example, Judge Stephen Reinhardt (a federal appeals judge in California) is usually the posterchild for judicial activism: he is one of the judges most-often reversed by the Supreme Court. Yet, Judge Reinhardt rates only one mention, and it is actually praise from Boot. Now, I’m not suggesting necessarily that Boot would think that Reinhardt is worthy of criticism (though I think it fairly obvious, given their respective ideologies), but there is a history and pattern of judicial opinions from which one could draw definite conclusions.

    As other reviewers have noted, this is a critical weakness of “Out of Order.” It’s a collection of anecdotes, almost a survey of judges across the country, but not very deep in its scope.

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  2. 2
    6 of 8 people found the following review helpful
    4.0 out of 5 stars
    Thoughtful, entertaining, not bad for a nonlawyer, June 7, 1998
    By A Customer
    This review is from: Out Of Order: Arrogance, Corruption, And Incompetence On The Bench (Hardcover)

    Max Boot has shown himself to be a thoughtful writer and deputy features editor for the Wall Street Journal. I have enjoyed his work in that paper for several years. His book is a thoughtful, entertaining and at times enraging look at the judiciary in this country. It falls prey to what I consider to be a congenital shortcoming which is the fact that the author is a journalist and not a lawyer or even a law school graduate. Hence, this is essentially someone who is intelligent and well informed but is still “on the outside looking in.” Like all top-notch journalists, he is adept at “getting up to speed” and doing the research necessary to speak effectively on the subjects he writes about. I’ve had several dealings with Wall Street and NY Times journalists and editors and I have to say that Max Boot is perhaps the least insufferable, smug and self-impressed of the bunch. (Take this for the compliment it is. If you knew these folks you’d realize just how self-impressed they are when it comes to hawking their own books and to “playing up” their purported expertise on various substantive subjects like the American legal system.) Max Boot is an intelligent, workmanlike writer who has done his homework on an important subject.

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