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We all know that our justice system is not fair. One obvious way to improve this is to have better – as in more thorough, inclusive and transparent - judicial review. You can file this under: ‘none of this is hard.’ However, my Kafkaesque experience trying to reach somebody in the judicial branch says otherwise.

“One of the most cowardly things ordinary people do is to shut their eyes to facts.” C.S. Lewis

Three men talked about how they felt their treatment was demoralizing and demeaning in front of Northern California Judge Wendy Coats. They were in court dealing with domestic matters relating to divorce.

“There’s nothing we can do we are powerless against her and her whims. She’s shouting at people in court, rolling her eyes, scoffing,” one said.

“As a father I don’t get heard in the courtroom I get looked down on,” Travis Sheridan shared. “It’s been unfair and biased.”

Jeremy White is a father of two. “I came out of those first hearings with Coats thinking, I felt like my ex got away with breaking the law and our custody agreement, cool.“

It’s not exactly a surprise when people have choice words for their judge. Imagine 50% of people you deal with are going to think you were wrong. Thick skin is required for the job, but so too is heart and preparation. While many may argue with how to quantify the former, the latter is clearly quantifiable. Of course judges have a hard job, mentally and emotionally, yet by the example we’ve seen of some recent Supreme Court nominees and cases like Brock Turner, it’s no wonder trust in our judiciary is around 50%. Yet despite this pressing need for change our system keeps limping along with no drastic change in sight.

“Yesterday is not tomorrow’s answer...The American justice system cannot sit idly by and expect to remain relevant and respected indefinitely.” John T. Broderick, Jr. Former chief justice, the Supreme Court of New Hampshire

Like doctors, all judges need to be the highest standard throughout their career. However, when people have a similar issue with a judge there’s little recourse that helps their immediate concerns and situation. Our judiciary needs to get with modern times.

It’s known that our justice system is deeply flawed, however it’s time we look at how our judges are part of the issue and address it in a meaningful way in all states. While how judges get the job varies - appointments by governors or voted in - so too does evaluation. Many of the discussions and discipline of judges occurs behind closed doors and months later, with only a small fraction being considered worthy of investigation. Meanwhile, people go before the judges and lives are affected and – wait, what’s the definition of insanity again? Doing the same thing over and over and expecting different result.  Right.

White told me the judge had him do 16 weeks of classes. “It was arbitrary. No oversight, it’s not standardized and no one reviewing…She didn’t even listen to what was going on. She didn’t even take five minutes to even discuss what was happening and that’s not right. You wait six months to have a hearing and it’s over in three minutes sometimes.”

As Sheridan said to me about his experience with Coats and the legal system, “too many believe there are two sides to every story but there’s not. There’s three. There’s the mother’s side, the father’s side, and the truth, which is typically a blend of the two. And that’s supposed to be the judge’s job is to figure out what the truth is by listening to both sides, not just by automatically choosing one side.”

It’s clear our justice system is in crisis.  Of the three men I spoke to, one of them didn’t want to share his identity as he was concerned about it’s affect on future dealings with the court. We expect this fear of reprisal to occur in other countries courts but not in America, yet it’s happening.

We say we’re a country of free speech yet people in our legal system can’t speak freely about it.

Let’s Look at California

The California court system, the nation's largest, serves more than 39 million people with approximately 1,800 judicial officers and 18,000 court employees, according to their website

There are systems in place for handling complaints of course, dealing with the effects of the problem. That system is run by the courts, with cases reviewed and decided internally. How often is self-governance effective?

The California Commission on Judicial Performance was established in 1960 as an independent state organization to investigate judicial misconduct claims and discipline judges.

“The Commission’s mandate is to protect the public, enforce rigorous standards of judicial conduct, and maintain public confidence in the integrity and independence of the judicial system. Its jurisdiction extends to all active state court judges, including superior court judges and the justices of the Court of Appeal and Supreme Court.”

That sounds all very well and good but with so many problems plaguing the system, a review of what and how it’s done is clearly needed. Fresh eyes are always good. Sunlight is the best disinfectant after all.

In 2022 there were 1868 judgeships. The commission considered 1,414 new complaints which named 1,005 judges, including a total of 863 different judges.

Out of this 1385 were completed. 1294 were completed after initial review. 91 were inquired/Investigated. The result of that is the chart below.

Only 29 disciplines issued. From 1,414.

And you may be surprised to find out that 90% of these complaints were from people in front of the judge like litigants, and only 3% from lawyers.

When I reached out to this commission to talk about this important issue of judicial review I found myself in a phone/email loop of Kafkaesque proportions. I never got anybody. It shouldn’t be this hard.

Kafkaesquedefinition: “Kafka's work is characterized by nightmarish settings in which characters are crushed by nonsensical, blind authority. Thus, the word Kafkaesque is often applied to bizarre and impersonal administrative situations where the individual feels powerless to understand or control what is happening.” Merriam Webster

There is also something called the Judicial Council of California which is the policymaking body of the courts. When I tried to contact them about Judge Coats and judicial review in general, I was told they can’t comment. However, the press person referred me to the commission. That commission, as I said, was where I couldn’t reach a person. Hence the Kafkaesque loop.

Having no luck with the judicial system I decided to speak with those who know judges best:  lawyers.  This is when I discovered an alarming self-silencing.  Many lawyers spoke with me off the record only, saying they were concerned if they spoke about judicial review in general, when going before a future judge their clients could be harmed.

Wait, what? First litigants and now lawyers? Since when is having constructive conversation about positive improvements in America met with self-gagging for the fear of reprisal? We have laws about this –  put there by lawyers and judges and litigants - for the benefit of us all.  How is it that it doesn’t seem to apply to this crucial segment of the population?

As with the piece I did a couple of months ago on our financial institutions, fear and retaliation exist in the very halls created to keep this from happening. And with no one talking about this our justice system is trudging along.  The very people best equipped to make positive change can’t talk about it in an open and healthy way. Those on the inside not only know the problem areas (and people), but are best equipped to put up guardrails. Paging Kafka.

In 2021, a Wall Street Journal article found that, “More than 130 federal judges have violated U.S. law and judicial ethics by overseeing court cases involving companies in which they or their family owned stock. A Wall Street Journal investigation found that judges have improperly failed to disqualify themselves from 685 court cases around the nation since 2010.”

So again, the men above questioning Judge Coats’ ability is not a surprise. When things aren’t going your way it’s natural to say a judge doesn’t have the skill. However, judges like Brock Turner’s and others highlight why reviewing our judges in a more thorough, uniform and transparent way is needed. Especially when, in some instances, our judges hold more power than the impact of deciding between lawyers arguments and managing decorum.

I spoke with Elura Nanos, and attorney and former children’s services prosecutor in New York City. She explained just how much power judges in Family Court can have on peoples lives.

“In most jurisdictions, judges in family court have a far more active role than do their counterparts in other courts. Family court cases typically involve bench trials, which proceed with the judge acting as both finder of fact and trier of law. Furthermore, given that family court proceedings often involve minors, courtrooms are often closed to the public and the media and many transcripts sealed. What’s more, litigants in family court cases do not have always have the right to court-appointed counsel. The result is an atmosphere that is potentially ripe soil for unchecked misconduct: pro-se litigants representing themselves in what amount to closed proceedings before a presiding judge with broad discretion.”

Unchecked misconduct and broad discretion together should make us all nervous. Stronger review and visibility behind-the-scenes –  just who does the reviewing and how are decisions made - would help the public trust our judges and strengthen our judiciary. It helps judges because people before them would trust their ability and also offer them support when they need it. Those responsible for our judiciary can’t be in an Ivory Tower.

A look at discipline statistics of trial court judges from 1990 through 2009 shows a small number of actions taken against California judges over that time. It’s clear we have a ballooning number of cases and we need judges, but allowing ineffectual ones cannot be the answer.  Without change that’s what we’re allowing to happen.

The commission disciplines for driving under the influence of alcohol to outbursts in the courtroom and bias. However, one  thing they don’t cover must be mentioned.

“Notably, legal error itself is not considered misconduct.”

Oh, the absurdity.

That’s because there are, of course, limits to what the commission can do.

“The Commission is not an appellate court, and cannot change judicial decisions. The Commission also cannot provide legal assistance to litigants, or intervene in litigation on behalf of a party. When a judge makes an incorrect decision or misinterprets the law, the ruling can be changed only through the proper appellate process.”

While the commission reports are available online, a lot of this work is done in private.  In the yearly report however, parts are redacted.

“The Commission also publishes redacted summaries of all private discipline each year in its annual report.”

A Forum for Discussion

Who judges our judges is exactly the issue that Nicholas Kaizer and his New York law firm partner Richard Levitt, were considering.  They decided to do something about it. They practice primarily in the areas of criminal defense and post-conviction relief in New York State and in the federal courts throughout the country.

They decided to create The Robing Room, a website that has 65,000 to 85,000 views monthly.

“Our reason for being is to provide a forum for lawyers and non-lawyers to discuss their experiences with judges, with the dual expectations that this airing of views will both inform our readership and improve the judiciary,” Kaizer told me.

“You might be interested to know that many judges have set alerts so they become aware of any new reviews. We also provide an anonymous and safe place for users to connect with one another and hold a dialogue concerning the judiciary offline.”

(Judge Coats happens to have one of the highest amounts of comments for the county, many rather critical.)

Kaizer explained to me that the site has been fully populated with 94 federal district courts, containing district judges and magistrates, and 12 federal courts of appeal. It also has judicial listings for all 50 states containing more than 3,000 counties. There are thousands of judges, magistrates and commissioners listed. It is constantly being updated and they host over 117,000 judicial reviews and ratings on the state sites and 35,000 on the federal site.

It’s one of the largest sites devoted to discussing judges and is routinely monitored.

“It’s critical that those who dispense justice should be highly qualified, fair and impartial.  Therobingroom.com provides insight whether reviewed judges indeed possess those qualities.”

As the site was created for lawyers, I asked Kaizer if he was surprised how many  people use the site to share their experience in front of judges.

“I suppose we should not have been surprised that non-lawyers have found it to be a useful forum to discuss issues relating to the legal system, particularly since there were few other outlets available to them. When we started out there were a handful of sites that tried to do what we are doing, but we have grown. We like to think this is because we have a very user-friendly design, continuously update our database and are free and open to all.”

This silence around discussing our judicial standards has our system crippled.

And in the meantime, people and families suffer.

“Your kids are growing up, right?” White told me, “Six months I wait, and I just missed six months of their life. My oldest is 14 and a half and I’ve barely seen him in five years.”

Moving Forward..

While I’ve been focused here on judges that need help, there are so many doing a great job. Maybe a better question is how do we have more of them? Kaizer offers the following:

“We both believe the judiciary, for the most part, are hardworking and dedicated public servants looking to faithfully administer justice and doing a difficult job for far less than they could make in the private sector. But there are also many exceptions, where judges are either not sufficiently informed, or exhibit bias that unfairly skews the system against certain groups. Our goal is to recognize excellence but also to call out the bad actors. Hence our motto: “Where judges are judged.For the most part justice is evenhanded. But it is naïve to think the rich, powerful and connected don’t often have the upper hand and that criminal defendants are often not afforded the rights to which they are entitled.”

When I worked for a national retail chain in college we were constantly aware that we could have secret shoppers report on our service. Nowadays with Tripadvisor and similar sites, everything from restaurants and hotels to washer repair service and tailors get reviews. Uber drivers get reviews and passengers too, and it has an effect. You don’t accept a driver with low ratings and don’t book that restaurant with crappy food and service reviews. This makes those businesses and workers improve, an immediate affect. (We are ignoring malicious posters here folks.)

So how come our most important arbiters of justice have no overview - that is based on both the law and behavior - in an accessible way to the public? That is based on not just the opinion of judges and lawyers but also the people who are before them?

Times have changed. This crucial part of our society is a relic of when a few  white men were educated, sat at the top of society, and so were unquestioned in their opinion and how they worked. However, days when men held these posts - unquestioned - for life, being regarded like gods, is over. Bias exists. Gatekeeping, too. So how come we haven’t amended judicial review and created standards to ensure we are actually delivering as close to fair and impartial justice as possible? It’s past time.

Our families deserve better.

Pretending everything is fine is a lot like what we learned from that guy behind the curtain that Dorothy found. It’s just a show that diverts our attention. And with lives on the line that’s not good enough.

"Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly."
Letter from Birmingham, Alabama jail, April 16, 1963.