SCALES OF JUSTICE

A study of America's lefgal system weighs the nation's judiciary and finds
it wanting.

a review of:

OUT OF ORDER
Arrogance, Corruption, and Incompetence on the Bench. By Max Boot. 252 pp.
New York: Basic Books. $25.

MAX BOOT can't decide whether or not he trusts the American people. Boot,
the op-ed page editor of The Wall Street Journal, has written a book
purporting to catalogue the faults of judges. One of those faults is
judicial activism: many chapters of "Out of Order" castigate judges for
frustrating the will of the people by invalidating statutes and being too
soft on criminals. But Boot also asserts that judges are not activist
enough: too often they let meritless cases go to juries or allow outrageous
verdicts to stand. Doesn't he realize that juries are the people too?

Even legislatures are not always to be trusted. Boot approves of activism
when judges strike down laws he doesn't like. In particular, he praises the
Supreme Court for invalidating Federal statutes that trespass on state
prerogatives. To call cases like these activist, he says, "is pure
sophistry," because the Court is simply showing "more respect for states'
rights" than earlier Courts. But much of the work of the Warren and Burger
Courts---targets of Boot's wrath ---can be described as showing more
respect for individual rights than earlier Courts. Boot does not explain
why respecting individual rights is unacceptably activist and respecting
states' rights manifests a wholly warranted distrust of Congress.

Boot similarly vacillates when it comes to trusting the people or their
representatives to choose judges. He criticizes appointed Federal judges
for their lack of accountability. But he doesn't much like the common state
system of electing judges either: it leads to corruption and incompetence.
And even when good (read: Republican) governors appoint judges, their
choices end up being overly activist. Nobody, it seems, can select good
judges. (Astute readers will figure out the one person Boot would trust.)

The problem, of course, may not lie in the selection process but in Boot's
idiosyncratic definition of bad judges, a possibility that he ignores. He
goes out of his way, for example, to make it seem that most of the trouble
comes from liberal judges appointed by liberal Presidents. In his
description of egregious acts by particular Federal judges, he lists the
appointing President---but only when that President was a Democrat. His
catalogue of bad judges identifies 26 as Democratic appointees and only one
as a Republican appointee. This is not to say that he never criticizes
Republican appointees; he just doesn't identify them as such. In lambasting
the Supreme Court for its 1992 abortion decision, he mentions Associate
Justices Anthony Kennedy, Sandra Day O'Connor and David Souter by name but
fails to point out that all three were appointed by Republican Presidents.

EVEN more disingenuous is Boot's treatment of a Court of Appeals decision
that overturned a criminal conviction because of an unconstitutional
search. Boot ridicules the case, describing it as the work of "overzealous
judges." He names Kenneth F. Ripple as one of the errant judges, but
neglects to mention that Ripple was appointed by Ronald Reagan. He does not
even bother to name the other judge who agreed with Ripple that the
conviction should be thrown out, and with good reason. Voting with Ripple
was Judge Frank Easterbrook, also appointed by Reagan and one of the most
respected judges in the country. Earlier in the book Boot had singled him
out as one of "the smartest people in Government service."

Although Boot claims that his critique "isn't about politics or ideology,"
ultimately that's all it's about. The most transparent illustration is his
description of Brown v. Board of Education. After agreeing with the bulk of
scholarly opinion that the decision invalidating segregated public schools
is unsupportable as a matter of text or original intent, he nevertheless
justifies it by concluding that "no matter how tangled its reasoning, the
result is one we can all applaud." In the end, "Out of Order" is just a
list of cases Max Boot can't applaud.

Suzanna Sherry teaches law at the University of Minnesota. She is the
author, with Daniel Farber, of " Beyond All Reason.

Checked-by: (Joel W. Johnson)