Now on booktv an encore presentation of our Signature Program booknotes. Max boot appeared on booknotes in 1998 to discuss out of order. In the book mr. Boot uses anecdotes and statistics to support his argument that judges have greatly damaged the criminal and Civil Justice systems in the United States. This is about an hour. Cspan max boot, author of out of order, what is your book about . Guest its about power and the abuse of power, brian. Its about one of the mostpowerful branches of the american government, the judiciary, and about how they wield all this influence, all this power, all this authority and have very little accountability to go with it. And what i write about is how this has resulted in a real disaster, i think, for america and for the legal system, in particular. Its led to what i call a revolving door in the criminal justice system. Its led to what people call a lawsuit lottery in the Civil Justice system. And its also led to a loss of democracy in constitutional law and ii think that judges have a lot of responsibility for all these problems that we face today. Cspan you name a lot of judges, and you talk about them in the book. Guest right. Cspan im just gonna pull one out here from chapter 5. Guest sure. Cspan . Judge norma shapiro. Guest well, judge shapiro isis a federal judge in philadelphia, and she has been basically presiding over the philadelphia prisons ever since a Consent Decree was signed some decades ago over allegedly unconstitutional conditions in the prisons. And what she did, as a result of this Consent Decree, was to institute a cap on prison population. And what this means is that when prison population hits an x figure, inmates automatically start getting released. And what this also means is that shes basically forced the local judges to release a lot ofa lot of defendants in pretrial proceedings, not give jail time to a lot of people who really ought to be in jail. And this has had disastrous consequences. Its basically decriminalized a lot of crimes in the city of brotherly love, including drug offenses. And a lot of these people who are released, who are allegedly nondangerous, actually go on to commit very dangerous acts. In fact, a rookie cop in philadelphia was killed by somebody who did not receive jail time as a result of judge shapiros Consent Decree. And this was pointed out by another judge, who presided over the trial of the murder of this guy who killed a rookie cop. This is just a disgrace. And there is absolutely no accountability for judge shapiro because she is a lifetime tenured, federal judge. Cspan how can she put a cap on the number of prisoners there are in prison . Guest well, technically, she didnt do it. What happened is a Public Interest organizationi believe it was the aclufiled suit against the city of philadelphia. And the city of philadelphia entered into whats known as a Consent Decree, whereby they agreed to settle the suit and do these various things. But basically this was done several administrations ago in philadelphia; it was a previous mayor years ago who did this. And as a result of this Consent Decree, judge shapiro supervises it. And that, in effect, makes her the chief prison warden of philadelphia. And now the current mayor of philadelphia and the current district attorney, who are both democrats, have tried to get out of this Consent Decree. Abut its very difficult to do because judges continue presiding over these things for years, even after the alleged harms that the Consent Decree was trying to correct have long since gone away. Cspan another judge that you talk about is a district judge, thelton henderson. Guest right. In. Cspan what is his story . Guest in San Franciscothis was a true outrage. The voters of california passed proposition 209, the civil rights initiative, which basically said that california will be colorblind in its state practices, in university admissions, hiring, contracts and so forth. And judge thelton henderson, this unelected federal judge in San Francisco who has a very liberal reputation, said, no, this is possibly unconstitutional, and im going to stop the implementation of thisof this initiative, which was voted on by the people of california. Now, ultimately, the ninth Circuit Court of appeals overrode judge henderson and said that his ruling was basically ridiculous. how can you claim that its unconstitutional to treat everybody equally regardless of race . Thats just absurd. but that was, nevertheless, judge hiltonjudge thelton hendersons position. Cspan you dont save your criticism just for judges. You take on tom delay. And the first thing i thought about is that yyour politics on this would come down, i would guess, more conservative than liberal. Guest i think thats fair to say, yeah. Cspan i mean, you are the oped features editor of the wall street journal. Is that the correct title . Guest yes, it is. Cspan whyyoyou say that tom delay was involved in partisan grandstanding. Guest well, what tom delay did, the congressman from texas, was he actually proposed impeaching activist judges. And i think its a good idea to do something to curb activist judges, but impeaching them, i think, is a terrible idea because that hasthat has not been our history, that has not been our tradition. There have been very few impeachment proceedings, and theyve traditionally been against judges who have corrupted the office. And there is no history in our country of impeaching judges because you disagree with their rulings. There are other things that you can do about it. And i think part of delays ire was generated by a judge in texas who had momentarily held up the election of some republicans down there over a question of voter fraud. And i dont think thats a gthats a horrible instance of activism. I dont think thats the kind of thing that we should be really worried about with the judiciary. And i think it was more motivated by partisan motives than by any highminded ideals. Cspan have you studied the law . Guest well, ive studied it iinin thein the way that reporters study matters, the way that foreign correspondents study foreign capitals or financial correspondents study financial markets. Cspan when did you start itstudy . Guest well, it really started when i went to work for the Christian Science monitor in 1992, and i wrote some stories there about the Civil Justice system, about the Supreme Court, about various other legal issues. And ive continued writing a lot about those kinds of issues since coming to the wall street journal in 1994. Cspan why did you get into journalism in the first place . Guest well, i guess it beat working. Itsits ayouits aits a job where you basically get paid to do and think interesting things. And i havelike a lot of journalists, im cursed with a short attention span, andand i dont want to do something which is just pure drudgery. And i think that in journalism, youre constantly learning something new. Youre constantly talking to interesting people. And thatsthats how i enjoy spending my days. Cspan how much time have you actually spent in a courtroom . Guest oh, some time. Ii mean, i cant pretend that ii go to work every morning and head straight to a courtroom and sand sit there all day. I spend some time. But i spend more time talking to lawyers, reading law review articles, talking to law professors, thinking about some of the bigger issues involved, although whenever i can i also like to visit courtrooms. Cspan but i did notice in your book that you more often than not pick up the phone and call, i would assume, mostly state judges. Guest right. Cspan give us an example of a state judge you called. And why did they take your call . Guest well, they take my call because i think they want to set the record straight to the best of their ability, andand thats why i call them upis to get the full story because i read things about them, but then i want to find out what their response is toto charges that they makethathat are made about them. And iii called a number of them. Cspan ive got one i wrote down. Guest yeah. Cspan paula laposa. Guest right. Shes a judge in indianapolisor a former judge who had a couple of very odd cases that came before her. She had a 70something man who was charged withthis was a really ghastly crimecharged with ripping a womans eye out with a claw hammerjust horrific crime. And yet she did not assign any jail time for this person. And another case she had, also, a geriatric thug before her who had been charged with raping a 19yearold woman. And in both cases they basically got a little home detention, no real jail time. And this to me seemed like an outrage. And ii had no idea how she could justify this. And so i called her up and asked her, well, how do you justify it . andand she gave me some explanations which, asif you read the bookyoull see i dont find entirely convincing, but nevertheless i give her side of the story as well. Cspan like what . Guest well, she talked about how, in the case of the guy who ripped out a womans eyes with a claw hammer, hed led a blameless life, hed raised 1212 children, he didnt have a prior record andand so forth. But my response to that is, well, yes, those are all mitigating circumstances, but think of the crime. This isthis is not justice. This is a travesty to let somebody like this be on the streets loose, no matter what theyve done the rest of their life. cspan what about David Ramirez . Guest well, hes ahes a Juvenile Court judge in denver who has a shocking record of releasing youthful miscreants who then go on sometimes to commit crimes. But, basically, heshe has a reputationhes known as uncle dave among some of the youthful offenders in denver. And hes got this reputation for being very easy on these young thugs, wholl go out and shoot people, and then uncle dave, as hes known, will not send them to prison. Hell send them to a juvenile facility or release them altogether. And this seems to me a shocking breach of what judges are supposed to do. So i called him up and i talked to him and asked him to explain these things. And in a lot of situations he didnt have a very good explanation. He just said, i dont remember this particular case. It may have happened this way, but he didnt have a lot of specifics to offer. But where he did, i certainly took that into account and incorporated that into what i wrote. Cspan have you ever tried to call a federal judge . Guest oh, sure. Ivei talk to federal judges. Cspan theythey return your call . Guest sometimes. Often, they dont want to comment or they dont want to comment on the record. But theres no law against judges talking to reporters, and more than a few of them have been known to. Cspan what was the full scope of what this book was supposed to cover . Give us kind of a synopsis of whats in it. Guest well, its very broad it really covers the damage that judges have done to the country in a lot of areas. I talk about judges who are corrupt, judges who are arrogant, judges who are ethically challenged. And i also talk about specific areas of the lawthree major ones. One is criminal law about how judges have released a lot of offenders, including violent offenders, onto the streets by not sentencing them harshly enough, by invoking various procedural rules that wind up freeing violent defendants. I also talk about the Civil Justice system and how judges have basically acquihave basically issued decisions that have increased the tort tax on every american, the amount of money we have to spend as a result of very costly civil verdicts. And, finally, i also talk about whats grandly referred to as constitutional law, but is really the way that judgesthey bridge our democracy, the way judges regulate issues like prayer in school, abortion, the running of prisons, the running of schools, all these things which they allege to be constitutional violations and which they basically use as an excuse to grab authority for themselves. Cspan define a tort. Guest its a civil wrong, basically. Its aits a very common type ofof legal case brought in thein the civil system, the most commonthere are a number of varieties, but theits basically personal injury, when you allege a personal injury and sue for damages. Cspan and when we talkwe keep hearing a discussion in this town about tort reform. What are people trying to reform . Guest well, its actually not quite as broad as tort reform because libel laws are a form of tort, and people arent talking too much about reforming libel law. Itsusually its talkwhat theyre talking about is Product Liability law, which is where somebody sues a company and says, your product is dangerous, and id like 50 million because of that, or whatever the amount is. Thats what theyre usually talking about reforming. Cspan whats the difference between criminal and civil law . Guest well, the basic difference is that in criminal lawi mean, a shorthand way of putting it is in criminal law, the punishment is to go to jail, whereas in civil law you can only be fined money. You cannot be imprisoned. Cspan why is there a difference . Guest well, theres a lot of historical reasons. I mean, thisthis is the way thati mean, theretherethereve been other categories of law, but this is the way the law hashas been shaped inin theover the last several hundred years. Ii mean, im not a legal historian. Im not very good on the medieval origins ofof the common law, but this isthis ithese have been the two branches of law as theyve evolved. Cspan where do you go for youror maybe a better way to ask it what do you consider to be authoritative when youre looking for information on the legal system and then judges . Guest well, i dont know that any one source is authoritative. Ithere are certainly very knowledgeable lawyers and law professors that i talk to. There are law review articles that i read, newspaper accounts which i read, magazine articles which i read. And with all those, what i do is, of course, i check it out before magoing with it. Ititit provides me information, but i have to confirm that its accurate before i can use it. Cspan what is your job . Hoi mean, give us the scope of your job at the wall street journal. Guest well, my official job title is, as you mentionedis editorial features editor. And im responsible for basically what other newspapers call the opeds, which are the signed articles that appear next to the editorials on the journals editorial page. And my job is to pick out the articles that we run every day andand supervise editors who edit those stories. Cspan where is your home originally . Guest well, i wasits a little complicated. I was born inin moscow, inin the former soviet union, a country that no longer exists, im happy to report. I grew up in california in a little town called riverside and in the suburbs of la. And from there, ive had a number of homes over the last 10 years or so. Cspan what were your parents doing in moscow . Guest living, working. They were. Cspan doing what . Guest well, they were russians. They wereactually taught english at the university of moscowstate university. They were english teachers there. Cspan so they were russian by birth. Guest yes. Uhhuh. Cspan both of them . Guest yeah. Both of them. And, indeed, so am i. Cspan and whwhen did you come to the United States . Guest 1976. Cspan how old were you then . Guest i was seven. Cspan and why did they come . Guest basically, seeking opportunity becauseseeking freedom, trying to escape from persecution. Cspan where are they now . Guest my mother and stepfather live in la. My father and stepmother live in london. Cspan did you grow up speaking russian . Guest not really. I grew up understanding it, but ibut i really grew up speaking english, and part of that is this anomaly that although my mother, with whom i grew up, is russian, she, in fact, taught english in russia. So, therefore, there was no learning curve for her withwith the english language so she was speaking it from day one, and so was i pretty much. Cspan what kind of schools did you go to in los angeles . Guest public schools. I went to la county public schools. Cspan and then what . Guest then i went to berkeley, where i was a student for four years and had great fun writing for the Student Newspaper and writing all sorts of incendiary things. I got people in berkeley all stirred up. And then i went off to yale and did a year in graduate school before deciding this was not what i wanted to spend the rest of my life doing. And then i went and got a job with the Christian Science monitor and wound up at the wall street journal eventually. Cspan go back to ucberkeley. What is something that you wrote back there for the newspaper that got people stirred up . And whywhy did they get stirred up . Guest well, there wasthere was actually just about everything i wrote stirred people up. Ii wrote about how berkeleya lot of people in berkeley were really relics from the 60s living on old ideals which had been discredited in the years since. I was there at the time of the gulf war, and i wrote columns supporting the gulf war at the same time that people in berkeley were marching around screaming, no blood for oil. No blood for oil. so, as you can see, i wasi was running counter to the main currents of berkeley political thought, and that was what stirred people up. Cspan what was the reaction to this and to you personally . Guest well, people werethey were not exactly admiring, i guess is the way to put it. I once got a bullet that quite literally had my name on it, said max boot on it. Ithe daily californian, which ran my column, once got a brick through their front window from another fan of mine. But a lot of people told me that they really enjoyed reading it. Theres a embattled minority at berkeley that has difa different outlook on things, and they enjoyed my columns. Cspan why did you go to work first at the Christian Science monitor . What was thewhat was the draw for you there . Guest well, part of it waswas happenstance because my wife waswas admitted to harvard law school, and she was gonna be living up in the boston area. And, therefore, i needed a job in the boston area. And the boston globe would not give me the time of day, and the Christian Science monitor saw something there and they took a chance on me and hired me. And it was ait was actually a great opportunity because theyretheyre not as well read as they used to be, but theyre a very good newspaper and they really cover the world and they gave me a lot of experience reporting and writing and editing national news. Cspan what would you describe as your political philosophy . Guest i would say its fairly conservative. Cspan whered you get that . Guest i guess part of it is from my parents because, having grown up under a communist regime, they naturally saw the horrors of that and recoiled from it and, as a result, became what in the american lexicon would be known as conservatives so i think that had a lot to do with it. Being at berkeley strengthened that outlook because that was not the main current of berkeley thought, and imim sort of an iconoclast by nature or try to be. And i rebelled against berkeley, andand the way i rebelled waswas by being more conservative thanthan the main currents there. Cspan you said that the boston globe wouldnt give you the time of day. Itthat sounds strong. Was it that they werent interested in your conservatism or you . Guest oh, they just werentit had nothing to do with political philosophy. They just didnt feeli applied to a whole bunch of newspapers, not only the boston globe, but lots of others, including the new Haven Register and various others, and none of them would even give me an interview because i didnt have five years of daily newspaper experience, which is what they said they required. Cspan the year you got out of berkeley . Guest 1991. Cspan and you went to yale. Whatd you study at berkeley . Guest history. Cspan any certain kind of history . Guest well, it was fairly broad, but basically european and british history of the last 200 years. Cspan had you gotten interested then at all in the court system . Guest no, i wasnt really that interested at that point. Cspan then what did you go to yale for . Guest study history again. And again it was basically european and American History of the last 200 years. Cspan so that makes you how old right today . Guest it makes me 28. Cspan how can somebody 28 years old become the oped features editor of the wall street journal . Howd that happen . Guest just luck, i guess. My predecessor left, and theyi was the deputy features editor and so ii moved into the job. Cspan but how did they hire you in the first place . Guest well, youd probably have to get bob bartley out here and ask him that. I applied. I wrote them letters. I asked to be hired. And i didnt hear back for a very long time, but eventually they called me up and said, we have a job opening. Are you interested in . i started off as an assistant features editor, as an assistant working in the department that i now run. And ive been lucky enough toto be promoted over the last few years. Cspan how often do you find yourself putting a feature on the oped page that has to do with what youre talking about in your book . Guest fairly often. I mean, i think we write a fair amount about the legal system, whether im running the page or not. I think its just a topic of some interest because judges and the legal system in general have assumed so much authority in america over the last 20 or 30 years that its really inescapable, that you have to write about it, because these are the people who are really running america. Cspan how did you get bob bork to write the introduction for thisactually, not the introduction, but the foreword . Guest i called him up and asked, and he was very generous, very kind. He received no payment whatsoever, but he just feels passionately enough about the subject that he wanted to do it. Cspan one of the things he brings up is a judge Martin Manton. Do you remember that story . Guest no. Cspan he said there is a legendary case of judge Martin Manton who sat on the court of appeals for the Second Circuit and who came very close to being nominated for the Supreme Court of the United States. When it become known that manton took bribes from parties appearing before him, he claimed innocence on the interesting ground that he took bribes from both sides, decided the case on the merits and then returned the money to the losing party. The defense caused judge leonard handthatthat defense caused judge leonard hand, perhaps the most distinguished court of appeals judge in our history, to call manton, a moral moron. havedid you find that kind ofof bribery anywhere in the court system when you did your own research . Guest oh, absolutely. I found a lot of it and not just historic examples like that, but going on right now. In fact, in san diego a couple of years ago, the fbi ran this operation which wound up resulting in the conviction of three judges on charges of bribery. And they were getting all sorts of goodies from a local trial lawyer, everything from free car repairs to, in one bizarre case, a juthis lawyer hired a ghostwriter to write a novel for this judge. Cspan andand how is corruption dealt with in the system . Guest well, thats the problem. Its not dealt with very well. Thats why theres so much of it. Basically, the only way its dealt with is when prosecutors come forward and investigate judges. But prosecutors are people who have to appear before judges every day, so theyre going to be pretty reluctant to take on those judges. And judges basically do not do a very good job of policing themselves. So some of the particularly egregious cases, i guess, ultimately wind up being prosecuted. But a lot of small stuffsmaller stuff, which is not outright bribery, but sort of in this gray area, where itswhere its ethically troubling, but you cantits hard to prove outright illegalitya lot of those cases just slide by. Cspan in your foreword withwith judge bork, he talks about the court having abasically a constitutional impact. And he brings up several different areas homosexuals, pornography and roe vs. Wade. Guest mmhmm. Cspan whats your take on all that andand the Supreme Courtswhatwhat is its responsibility when it comes to the constitution . Guest well, obviously, the Supreme Court has a job to overturn statutes which are clearly unconstitutional. I think the problem and whats happened in the last 40 years, as weve had this socalled rights revolution, is that the Supreme Court has overturned a lot of laws which it personally disagrees with and which are not clearly unconstitutional. And you have this very bizarre situation where the Supreme Court is micromanaging the state regulation of abortion, a job that really ought to be left to the states. And in all these instances, i dont think it really matters what your view is on the merits, whether youre prolife or prochoice; what your view is on gay rights or those other issues. Im not a huge social conservative on some of those issues, but my point is that these decisions ought to be left up to the voters and to the state legislatures. They should not be decided by unelected judges in washington. Cspan whos your favorite Supreme Court justice . Guest well, of the current ones, i would say its scalia. Cspan why . Guest well, because i think that he has a very restrained view of the power of judges. He doesntalthough hes known as being a conservative, i dont think he tries to impose his conservative political beliefs on the law. He advocates a philosophy known as judicial restraint, which is that judges should onlyshould basically act along the lines envisioned by laws drafters, not along their personal beliefs. And i think he acts on that and is a model of how restrained judges ought to be, but arent. Cspan whos your model for the way Supreme Court justices shouldnt be . Guest well, i think thethere are many models, unfortunately. I think that the historic example would probably be brennan oror warrenchief Justice Warren oror associate Justice William brennan jr. , who basically wrought this revolution in the law over the last 40, 50 years and whose legacy is still with us today. And what they did was they imposed the Supreme Court into many areas that had previously been left up to politics, and they created rigid rules and enforced them from the court. Cspan judge bork says in his foreword that the public is massively uninformed about both law and judges. do you agree . Guest absolutely. I think thats true. And i think what happens as a result is that people are fed up with the legal system. They get upset when they read about headlines on a grandmother winning millions of dollars over a coffee spill or hardened criminals getting out of jail. They get very upset about these things, but they dont understand how it happens. They dont link those decisions with the way judges are selected. And what i try and do in this book is to draw that link and to show how judges are responsible for these things that people are upset about. Cspan judge bork also talks about term limits. And he says for federal judges would similarly require a constitutional amendment. What do you think of the idea of term limits on judges . Guest im not a fan of the idea. I have some serious misgivings about it, in part because so many of the great judges in American History have served for a really long time, including Justice Scalia today and, historically, holmes and story and cardozo and all these great judges. I think it takes a while to develop the expertise necessary to be a great judge, so i would not be in favor of term limits. I disagree with judge bork on that one. Cspan who is judge Terry Mcdonald of the 186th District Court in san antonio, texas . Guest judge mcdonald is a judge in san antonio, texas, who has acquired a reputation for being pretty soft on crime. In one case, which was just shocking, he actually released a man who had had Something Like 23 convictions over the course of a very short life. And judge mcdonald released him, let him out of jail, and then a month later this guy showed up at his girlfriends apartment and killed her. And if he had not been released by judge mcdonald, he wouldthat woman would probably still be alive today. Cspan theres a quote in here from judge mcdonald, and ityou say he explained to you. Guest yes. Cspan he said, i look for the good in people. The easy thing for a judge to do is to send everyone to prison and to disregard the fact that some crimes are committed by basically good people who deserve a second chance. guest well, i dont think thats a very good excuse for freeing somebody who winds up killing his girlfriend. I think that judgestheir duty is to be tough on crime. Ii had this conversation with a prosecutor during the course of writing this book, and i said to him, well, what about these judges who say, i want to take a chance on somebody. Iyou know, ii see some good in him. Iii dont want to send him away. I want to take a chance on him . and this prosecutor was just livid. He said, its not the judge whos taking a chance. Its the community thats taking a chance. This judge is sentencing some innocent person in the community to death or maiming or something terrible. Its the community thats taking a chance, and the judge has no right to take a chance with innocent peoples lives. cspan judge bork says the legal system is in shambles. Guest i agree with that. Cspan what does that mean . Guest well, i think it means that its basically not doing its job. We expect judges to send the guilty to prison. We expect judges to throw frivolous cases out of court. I think we expect a basic level of competence in a lot of judges, and i think were being disappointed on all those counts. I think thats whatat least thats what i mean by the system being in disarray, and i imagine thats what judge bork means as well. Cspan what do you want this book to do . Guest well, i want this book to alert people about whats going on in the legal system. I hope that this will spark some interest in judges and will cause people to closely examine the qualifications of judges that they vote for every election, as well as those who are nominated to the federal courts and have to be confirmed by the senate. Cspan you say here in a chapter called perverse failures, the notorious case of Robert Alton Harris illustrates how far some judges are willing to go to throw a gavel into the gears of what Justice Harry blackmun described as the machinery of death. In 1978 harris killed two teenagers because he wanted to steal their car. Then he finished off the hamburgers they were eating. whatwhat else is there to that story about Robert Alton Harris . Guest well, thhe committed this heinous crime in 1978, and there was absolutely no doubt of his guilt. But it wasnt until the 1990s that he finally came to be executed. And even when his execution was finally scheduled, itit just took forever. His execution was finally scheduled, but then these activist judges on the ninth Circuit Court of appeals, which covers california which is where this was taking place, they kept issuing stay after stay. At one point harris was actually strapped into the chair and going to be executed, and then the judges issued a stay and he was taken back to his cell. And finally the Supreme Court got so fed up with this that they said, we will not allow any more stays to be issued in the case of Robert Alton Harris, and finally he was executed. But all of that leall those legal battles really denied justice toto his victims for a number of years, and they also wound up costing the government millions of dollars in legal fees because its so expensive to fight these endless battles, even though there was no question that he was guilty. Cspan how do you stop that . Guest well, i think you have to pass laws, as congress is starting to do, limiting the appeals of deathrow inmates, limiting the discretion of judges to issue these kinds of stays which prevent the lawful penalty from being carried out. Cspan your chapter justice for rent is about what . Guest its basically about judges who are ethically challenged, situations where conflicts of interest arise or even outright bribery. And i talk about how this seems to be a fairly prevalent condition in some quarters of theof the legal system, and very littlevery little is being done about it. Cspan you single out places like texas and california, in particular. Guest right. Cspan why . Guest well, part of it has to do with the fact that those arei think texas is, in some ways, a bigger problem than california because, in texas, judges are elected in partisan elections. And this is true with a number of states. And what happens is that itjudicial races become a political football, and judges need to raise a lot of money in order to win these races. And how do they raise a lot of money . Well, they have to go to the people who have an interest in appearing before them because, you know, just ordinary citizens dont have that much interest in judicial races. So its pretty much lawyers and people who will be appearing before the judges who contribute to their campaigns. And thats just a recipe for conflicts of interest. Cspan you talk about a judge john forstelor fostel. Guest fostel. Cspan do you remember him . Guest yes. Cspan whawhats the story there . Guest well, i think this is one of these troubling cases where nothing illegal occurred, but its, nevertheless, very troubling because judge fostel presided over a 200 million verdict in this very small texas town called decatur. And this was a verdict against a big outoftown company. And it later emerged that at the very time that he was presiding over this verdict and ratifying the jury verdict, as all judges must do, he was actually receiving money from the plaintiffs lawyers, who turned out to be his former law partners. And hewhen he had left their law firm, he had signed an agreement that allowed him to continue receiving contingency fees that these lawyers were getting. So at the very time that he was judging their claims, he seemed to have links to one side. And i think this is atat theat the least, this creates aan appearance of impropriety. Cspan how much of that goes on around the country . Guest an awful lot. And i think it goes on especially in small jurisdictions where everybodys cozy with one another, where theres a handful of judges and lawyers, and theyre all pals with one another. Cspan do the local newspapers publish these kind of stories . Guest no, because the local newspapers tend to be part of the establishment. Theyre usually in cahoots with the local bunch. Cspan got here another story youve got of the Oquinn Law Firm. Guest right. Cspan what was that about . John oquinn. Guest right. Well, its about a very troubling case that raises a lot of questions, and john oquinn is a very powerful and wealthy plaintiffs lawyer in houston whos made a lot of money from Breast Implant claims. And one of the women he represented wound up suing him, oddly enough, claiming that the Oquinn Law Firm had misplaced tissue samples thatthat she had given them and had erroneously tested tissue samples, which indicated that she had breast cancer. And then she had a mastectomy done, and it later turned out that, apparently, she did not have breast cancer. This, at any rate, is what. Cspan was it a double mastectomy . Is that right . Guest i believe so. Imim not positivesingle or double. But she had. Cspan oh, yeah, it is a dit was a double. Guest double mastectomy. Cspan mmhmm. Guest . On the belin the belief that she had breast cancer, which, apparently, ii sayi stress apparentlyit was not the case. And she wound up suing john oquinn. And her case was thrown out on Summary Judgment by a local judge who had received some Campaign Contributions in the past from mr. Oquinn, and that judges ruling was eventually overturned by an appeals court. But, nevertheless, this raises some troubling questions about the way justice is being administered in houston. Cspan if you could change somethingand something you think could really be changedabout the whole system, what would it be . Guest well, i think i wouldfor starters, i would end the partisan election of judges because i think thats just an invitation to disaster. I would also basically reduce the discretion of judges by imposing sentencing guidelines, by passing limits on how much they can allow to be awarded in civil cases. I would decrease judges discretion and hand hopefully force them to focus on doing their jobs better instead of ranging off into other areas, like trying to run our social and political life. Cspan youin this justice for rent chapter, you have a whole section on federal judges, but you also bring up operation graylord in chicago. What was that . Guest well, that was a giant operation mounted by the fbi in the 1980s, which was targeted at the cook county bench and caught dozens of judges taking payoffs in the most flagrant manner. And it also caught lawyers and Court Officers and various others basically in a very corrupt scheme, including, in one case, a judge who took a payoff in a murder case, which was aa case that just recently reached the Supreme Court. Cspan on the federal bench, you liyou list a bunch. us district judge Robert Collins of new orleans became the first black federal judge in the modernday deep south when he was appointed by president carter. In 1991, he was found guilty of scheming to split a 100,000 bribe from a marijuana smuggler. what happened to him . Guest well, he was eventually forced off the bench he was convicted of the crime and forced off the bench. Cspan why would a judge, whod been approved by the United States senate, scheme to split a 100,000 bribe . I mean, did you everthey everthey ever talk about why they do that eventually . Guest well, i suppose they wanted the money in this parti dont know what their individual motives are, but i think the larger problem that itit points to is that the senate doesnt give very careful scrutiny to a lot of people it approves for judgeships and so a lot of bad apples get thrown into the bunch. Cspan whats a recent example . I know youyou bring up pete wilson in here, and you also bring up george pataki, the governor of the state of new york, who are both republicans who you say talk out of both sides of their mouth. Guest well, exactly. Pete wilson had often inveighs against judicial activism, and yet who does he appoint as chief justice of the california Supreme Court . A man named ron george, who has just recently overturned a law in california that required parental consent in order for a minor to get abortion. Now, oddly enough, the most liberal member of the court, stanley mosk, who was appointed by governor pat brown back in the 60s, actually voted to uphold the law. So in other words, what you had was the spectacle of this wilson appointee voting to overturn a law that a pat brown appointee was voting to uphold; very odd when its pete wilson who often complains about activist judges. Cspan on your list of federal judges, us District Court judge robert aguilar, appointed to a vacancy in san jose, california, by president carter, was convicted in 1990 of leaking a wiretap to a mobster and lying to the fbi. What happened to him . Guest well, ii think there waspart of his conviction was overturned, and eventually he reached a plea bargain with prosecutors. Cspan resigned his seat . Guest resigned the sthe seat, andand they didnt press charges further. Cspan do you think there are many judges on the federal bench that dont get caught doing these kind of things . Guest i suspect there are a number. Its hard to prove, obviously, because by definition if they havent been caught, how do you know about them . But i suspect there arethere are more of these thanthan most people are aware of. Cspan in 1980, the senate voted to impeach us district judge Alcee Hastings in miami, another carter appointee. Hes now a United States congressman. Guest right. Right. Cspan how does that work . Guest well, some people might say that hes better fitted to be in congress than on the judiciary; he might feel more at home among congressmen than among judges. He washe claimed that the prosehis prosecution was racially trumped up, and the voters in his district in florida believed him and voted for him. Cspan you go on in that same chapter to talk about judicialimimim looking for the word here. Im looking atrightJudicial Councils. Guest right. Cspan . As one way of dealing with it. But you say theyre relatively toothless. Whats a Judicial Council . Guest well, its this institution which exists in every federal appeals circuit, and there are 13 all together. The whole countrys divided up into federal appeals circuits. So you have the ninth circuit out in california and nevada; you have the dc circuit here in dc, the fifth circuit in texas and so forth and so on. So theres 13 of them. And a lot of the judges in each circuit sit together in this body called a Judicial Council, which was created, i believe, in 1980 under a law passed by congress. And they basically are there to Police Ethical problems or other problems that arise with the judges in their jurisdiction. But they really dont have the power to do very much. They can basically give reprimands to judges, but it doesnt have any effect because all these judges have lifetime tenure and they cant be removed by their colleagues. So thethese councils investigate things in secret, but they dontreally dont do very much to Police Ethical problems on the bench. Cspan is this your first book . Guest it is. Cspan whatd you think of the experience . Guest i enjoyed it. I learned a lot. I think thats one of the great things about writing a book, is that you get to learn about something. Andand i think some authors say the only way you can really learn a subject is byis by studying it intently enough to write about it. Andand thats what happened in this case; i learned a lot. Cspan when did you start writing it . Guest well, in a sense, the preparation for it has been going on for a number of years in the course of my reporting. But asas thethe book, per se, ii started writing it last year. Cspan and its done by basic books ununder the new ownership. Guest right. Cspan now was it hard to sell it . Guest no, i didnt find it particularly hard to sell it, but i wasnt really involved with that. My agent handled that. Cspan and you say a lot of nice things about your agent, whos the same agent for tom wolfe and bonfire of the vanities. Guest well, i dont think he was tom wolfes agent. Hes a friend of tom wolfes, and hes a great and wonderful man named eddie hayes, who was actually the model for the defense attorney Tommy Killian in bonfire of the vanities. Cspan how did you decide to ask him to be your agent . Guest well, i didnt ask him; he asked me. He she sought me out andand said, iyou know, ii think youreyoure a guy i want to represent. And can we talk . and i said sure, and we wound up striking aa very happy deal together. Cspan so whywhy do you smile when you bring up his name . Whats so special about him . Guest oh, ed, i think, aas anybody who knows him, will tell you is a real character. Heshes a very colorful guy. Hes nothes not one of these staid, buttondown lawyers. Heshes very excitable. And his clients range from peopleyou know, mafia figures in prison to authors like me, so he runs the whole gamut. Hes not just a literary agent, hes also a practicing lawyer and hes been involved in a lot of highprofile fights over the years. Cspan how many copies did they print first run . Guest i dont know. Cspan what did they tell you youd have to do in order to sell a book like this . Guest well, one of the things they told me was to appear onon a great show like yours, brian. But besides that, they stheyre gonna send me on a speaking tour around the country. Ill be appearing in a number of cities from new york, washington, San Francisco, la and so forth, and i imagine ill be doing talk radio and various other things as well. Cspan but what about the book itself . I mean, was there any conversation about, you gotta put this in or its not gonna sell . guest no. No, there was none of that. It wasthe editorial content was pretty much based on the merits asas i saw them. Cspan and what did your wife do about her law degree . Guest what did she do about it . Cspan did she get it . Guest oh, yeah, shesshes a lawyer. Cspan what kind of law does she practice . Guest corporate law, thethe harmless kind, as i like to call it, the court thatthethe kind that greases the wheels of commerce and makes the country go around. Cspan and what role did she play in your whole discussion about how you look at the law . Guest well, shes been really very valuable. Ii sort of felt like i went to law school by osmosis in a way when she did because i would discuss these issues with her, andand i think i learned a lot from that. And she was a great help on this book, reading my early drafts and giving me ideas on where to go, things to improve. And she was just extremely valuable. Cspan when did you find time to write it . Guest thats a good question. I often ask myself that verythat very question. A lotia lot of it was before and after work. I would sometimes get up at 5 30 am to write before going to the office. Cspan and how long could you write at one time . Guest oh, a few hours at a time basically. Cspan you a fast writer . Guest yeah. Thatsi am a fast writer. That comes from the newspaper background. I cani can write on deadline pretty well. Cspan in the book you say that, people who are in the judicial profession are not people of towering intellects. guest yeah. And i dont think thats a very controversial judgment. Judges say the same thing. Cspan why . Guest well, because of the selection processbasically, who gets selected. Its notpeople dont gettypically dont become judges based on wonderful legal scholarship or intellect. They get selectedas somebody once said, aaa judge is a lawyer who knows the governor. thatstheyre basically selected for political reasons, for having political connections, for having worked in somebodys campaign. So, therefore, its anot a selection system that rewards for high intelligence or scholarship. Cspan youyou had this statistic that, from 1960 to 1985, the number of lawyers grew 130 percent in the United States and the population grew 30 percent. Where they all going . Guest well, theyre going to make trouble is the bottom line as the old story has it, when one lawyer moves into a town and hes by himself, the first lawyer in that town, he starves to death. But as soon as a second lawyer moves into town, now theres two lawyers in townpretty soon theyre both wealthy because they both make work for each other. And that vast increase in lawyers is basically making work for more lawyers. And thats why the number of lawyers keeps increasing. Cspan you point out that the recidivism rate is 60 percent. What is recidivism, and what impact does that have on this whole system . Guest well, recidivism isis criminals who rwho repeat their oftheir offenses, whowho go back to crime. And thats really whwhat the legal system is not doing well. Ideally, whatd you want is to put hardened offenders away the first time so theyre not released, then go out and commit other crimes. But, unfortunately, that is not what is happening now. And 2 3 of thoseofof felons who are arrested have had previous arrest records. What that indicates is that a lot of people are churning through the system. They spend a little time behind bars, they get out, they commit another offense, a little more time. And often the end result of all that will be some truly atrocious and heinous crime a murder, a mass murder, something really, really dreadful. And judges are not being vigilant enough. If they had been, they would have caught these people a few offenses ago and put them away and spared somebodys life. Cspan judge russell clark, kansas city. Guest right. He is really an example of what i call the jurisdocracy in action, which is this elite that seems to run the country from the bench. He is a federal judge in kansas city who, as a result of a Consent Decree in the 1980s, basically took over the Kansas City School district. And he orderedhe allowed them to spend massive amounts of money in this bid to integrate the schools, to lure more white students into kansas city. Cspan a federal judge. Guest federal judge. And as a result of his orders, property taxes more than doubled in kansas city by judicial fiat and the schools wound up spending 1. 8 billionthats billion with a bon these various School Improvement projects like putting in planetariums and. Cspan let melet me read this. Guest yeah. Cspan . cause its. Guest yeah. Cspan . Iits on page 133. Guest yeah. Cspan it says, heres a partial list of what judge clark orderedand this was in 19did you say 1980 or in the 80s . Guest it was starting ithe trial happened in 1978. I believe the Consent Decree was entered in 1984. Cspan in kansas city, missouri, not kansas. Guest right. Right. Cspan high schools in every classroom will have air conditioning, an alarm system and 15 microcomputers. this is the judge writing. Guest right. Cspan a 2,000square foot planetarium, greenhouses andis it vivarariums . Guest yeah. Cspan a 25acre farm with an airconditioning meeting room for 104 people, a modeled United Nations wired for language translation, broadcastcapable radio and Television Studios with an editing and animation lab, a temperaturecontrolled art gallery, movie editing and screening rooms, a 3,500 square foot, dustfree diesel mechanics room, an 1,875 square foot eleelementary School Animal rooms for use in the zoo project, swimming pools and numerous other facilities. where did he get the authority to do this . Guest thatsthatsthats exactly what i think a lot of people in kansas city wanted to know. And hehe claimed he got the authority out of the constitution. And to pay for all that, as i mentioned, he gothe also said that he had the authority to more than double property taxes. Cspan you say here the property tax went from 2. 05 per 100 up to 4 per 100. Guest right. Cspan . Of assessed value. Guest right. I think it eventually went even higher, yeah. Cspan andand how long did this keep going, and is it still that way . Guest its just now ending. The Supreme Court, after a number ofof cases involving judge clark, finally, in the 1990s, ruled that his consthat Consent Decrees like his would have to wind down. So last year judge clark finally indicated that he would give up control to Kansas City Schools, but only after eliciting a promise that the schools would spend another 320 million on various improvements. And the amazing thing about this whole experience is that theres absolutely no evidence that all this money has had anyhas had any impact on educational quality. Test scores have not gone up. There are fewer, not more, white students in the schools. None of this has worked, and yet there are absolutely no repercussions for judge clark personally. Cspan judge a. Ted bozeman. Guest right. He is, i thinki believe he just retired, actually, since thejust in the last few months. But he ishe was aafor many years, a judge in hayneville, alabama, a very tiny town in alabama. And he presided over the largest verdict ever against general motors, which was a 150 million judgment against gm on behalf of a local man who had been crippled when his pickup truck flipped over on the highway. Now the reason why he was crippled was because he was not wearing a seat belt. Its pretty obvious. But judge bozeman allowed the local lawyers to inflame this jury and to allege all sorts of defects on gms part, which led to this staggering verdict against the company. Cspan so what happened . Guest well, eventually, it was settled out of court for an undisclosed sum, but it was a very demoralizing picture because judge bozeman made a lot of rulings that were friendly to the plaintiffs. And it also emerged that even as he was hearing some of the pretrial motions in the case, his wife was actually represented in another case by those very same plaintiffs lawyers. And eventually she pulled out and stopped being represented by them, but gm argued that this created an appearance of impropriety on the part of the judge and he denied it and refused to recuse himself. Cspan iis alabama a place wherei mean, ii remember you talking about where there are states wherewhere corporations or people will go to tonot corporations dbut to sue. Guest yes. Cspan . Forbecause theres a Friendly Court there. Guest yes. Cspan andand where does alabama fit in, in all this . Guest its near the top. It was. Cspan and why . Guest it wwell, it was dubbed tort hell by time magazine. And, basically, a lot of juries in alabama are really willing to sock it to outofstate defendants, huge companies. Its basically the same impulse that led to George Wallaces rise. Its this populist fervor against people from detroit, asas people said about gm in this case. Its this antipathy towards big companies. And the way they express that antipathy these days is not by electing george wallace, but by sitting on juries and voting these outrageous 100 million verdicts against companies, even though they may not have done anything wrong. Cspan judge Michael Gallagher of cuyahoga county, near clevelandor at least its where cleveland is. Guest right. Cspan what was thwhats that story . Guest well, hes one of my favorite judges in the whole book, just an amazingamazing story. He was a guy who had almost no qualifications to be a judge and had, in fact, had a criminal record involving the beating of his wife. But despite all of this, he was elected to the bench because, a cleveland paper reported, he had an irish last name and voters like irish last names in judicial elections. So he was elected to the bench, and he made no secret of the fact that he was basically in favor of criminalizing drugs. He allegedly even referred to parties in court as dude and man. and, eventually, the da caught him with possessing crack cocaine, and he was convicted and sentenced to jail for possession ofof cocaine with intent to distribute. And this is a guy who was a judge. Justititit floors you to think that a guy like this could get on the bench. Cspan if you found yourself in court for any reason, what would be the first thing youd do, based on what you know about the system now . Guest well, i think id be in trouble. Based on having written this book, i wouldthe first thing i would do is id ask every judge to recuse himself. Cspan but what would you do personally . I mean, what kind of aa lawyer would you want . Guest well, you want an aggressive one, obviously. I think all parties want an aggressive lawyer to defend their interests in court. Cspan you say that there are three myths common in conservative circles first, it is not the case that judicial legislation began with a warren court. Second, judicial activism is not strictly a liberal phenomenon. And third, myth of the right is that judicial legislation is always wrong. cover some of that. Guest well, itheretheres always been a tradition of judges being activists to one extent or another, and there have been instances in our history when conservative judges have been the activists. There was a time early in the century during whats known as the lochner line of cases when judgesconservative judges, who believed in capitalism, overturned state regulations on business, such as minimum hours, setting minimummaximum wagemaximum hours and minimum wages, that kind of thing. And they did this because they thought this was an infringement upon their view of how the country should be run. And what happened was that, around 1940, the situation reversed and the judiciary stopped being dominated by conservative activists and eventually went to being dominated by liberal activists. And i think thats basically the situation we find ourselves in today. And i di dont think we should have activism of either kind, either conservative or liberal. We should have judges who rule based on the law, not on their political or personal beliefs. Cspan speaking of actimismactivism, how can somebody get a piece on the oped page of the wall street journal . Guest well, send it in. Fax it or mail it, and well read it. Cspan do you pay them . Guest we do, a small amount. Cspan whats the small amount . Whatswhats usually the amount you pay . Guest it ranges from 200 to 350, basically. Cspan and how often does something come in over the transom that you put on the page . Guest a fair amount, often especially thethethe quirky pieces near the bottom of the page, which often recount personal experiences. Aa very large number of those are unsolicited submisarticles. Cspan how do you do it yourself . I mean, do youdo youare you the final word on whether something goes on the page . Guest well, pretty much. I mean, if theres something controversial, then other people at the page will get involved, but on a daytoday basis, imim usually the final word. Cspan what are you surprised about, having a job like this . Whatwhat did you not expect . Guest well, i guess what surprises me is how everybody wants to be on an oped page. We hear all the time from people who are professionalsdoctors or lawyers or other peopleand you think that theyveprobably have pretty busy lives, a lot of clients or patients to see. But, no, they somehow find the time to set down their views on various world matters andand send them in to us. Itsitsitsthats sort of been a revelation to me. Cspan how many pieces do you get vs. How many pieces you put on the page . Guest oh, well, we receive hundreds every week and we onobviously, only run 15 a week, soand a lot of those we dont receive just over the transom. A lot of those we solicit. So the number of unsolicitedthethe percentage of unsolicited submissions that we run isis very low. Cspan i know there are all different lengths, but whats the optimum length . Guest it varies. Its from 800 to 1,500 words. Cspan and what would you advise someone who wants to get their piece on the oped page of the wall street journal . Guest know what youre talking about. Write about a subject where you have firsthand knowledge, either through reporting or some other way. Dont just set down your views onon something you read about in the newspaper. Write about what you know. Cspan and from your standpoint, what do you like to read . I mean, whatwhat are the kind of pieces that really get your attention . Guest i like reported pieces. I like pieces where authors really go out and dig up new information and present something which is really newsworthy andand captures the readers attention. Cspan all right. Youre 28 years old. Didyou didnt get that masters degree or you did . Guest i did. I have an ma. Cspan from yale. Guest from yale. Cspan . In history. Features editor of the wall street journal oped page. Whats your goal . Guest other than retiring, you mean . Cspan yes. Guest well, i think one of my goals is to someday live in Santa Barbara down by the beach i think thatsthats one of my great goals in life. But i dont know if or when im ever going to achieve that. Cspan whats your professional goal . Guest im pretty happy where i am right now. Id like to do more writing, and assuming everything works out, id like to write more books. Cspan now bob bartley became editor of that page inof the paper in 1972. Guest right. Cspan you remember how old he was at that time . Guest i think he was in his early 30s. Cspan do you have any interest in being the editor of the editorial page or the editor of the paper . Guest well, thats sort of like asking a congressman, do you have any interest in being president of the United States . and i suppose the answer is, well, i sure wouldnt mind if it fell into my lap, but i dont think its terribly likely. cspan what was the hardest thing about doing this book . Guest the hardest thing about doing this book. I guess it was covering so many different areas of the law. I really had to become familiar with a lot of things, including thareas that i had not written about a lot at the wall street journal. Cspan max boot, author of out of order, thank you very much for joining us. Guest thank you for having me. A i was shaped as a High School College student type Barry Goldwaters conservatives and the degree to which goldwater began talking about a different way of solving our problems than had been the dominant elite. Then as a senior in college i saw Ronald Reagan give his nationwide address in october of 64 ended in many ways it permanently changed my understanding of what we were here for. In 66 i watched reagan ran for governor and then you saw the rise of an intelligent populist modern conservatism and it was all this. The people at the time on the left never used the word intelligent to apply to Ronald Reagans but thanks to the work of Clarence Goodwin and Natalie Sanderson we now know that reagan personally wrote over 600 essays on government in the late 1970s which became his radio shows. We know that he in fact had sought a great deal at great depth about how washington works and how Government Works and that he was prepared to lead in ways that were quite extraordinary so in many ways i saw what we did in the contract with america as standing on Ronald Reagans shoulders. We participated as young reaganites in the 70s and worked with the ministries in the 80s. At one point i went down with a group of hardline activists young members and we complained to the president gave this was about 1987. That he wasnt doing enough and we yammered at him for about an hour. I will never forget as we we