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

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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.

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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

About the Author:

Max Boot is a senior fellow in National Security Studies at the Council on Foreign Relations. His writing has appeared in many publications, and he has twice been a finalist for the Gerald Loeb Award. His previous book, Out of Order: Arrogance, Corruption, and Incompetence on the Bench, was published by Basic Books in 1998. He lives with his wife and three children in Westchester County, New York.

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