How litigant-chosen judges could fix America's broken court system

In a previous article (Federal courts to out-of-state lawyers: Get lost, Daily Journal, Jan. 10, 2025), I discussed Lawyers for Fair Reciprocal Admission v. United States (LFRA), currently before the 9^th Circuit (Docket No. 24-2213). The case revolves around two simple but critical questions: Should litigants be allowed to choose their own lawyer, even if that lawyer isn't licensed in a specific federal district? Should a lawyer admitted in one federal district court be allowed to practice in all federal district courts?

This article takes the discussion a step further and discusses judges and courts.

Judicial conflict of interest

Traditionally, the judiciary's role is to be an independent, third-party decision-maker and resolve disputes between opposing parties. That is the explicit mandate of the Constitution. In a controversy, someone must have the final say,

The LFRA plaintiffs are suing the federal district court ... in the federal district court. Yep, you read that right. A judge from the very court being sued gets to decide if their own court's rule is valid. It's worse than a cat being tried by a court of dogs.

If you see a conflict of interest, go to the head of the class.

Transferring the case to another district doesn't help - it's still a district court judging itself. Imagine playing Monopoly, where the banker makes the rules, interprets the rules and enforces the rules.

Under the current judicial system, the LFRA is a cursed case. It will be damned and destroyed. The LFRA case is doomed.                

In the beginning

James Madison, et al, designed our republic with three branches of government, each intended to be independent of the other. The Legislature makes the laws. The Executive administers the laws. The Judicial resolves controversies between parties. The first two were to be political, and the last to be impartial and free from politics.

While noble in theory, this independence failed in practice. Worse than failed, it was doomed to fail by the system's very nature. Judges are not free from political or financial pressures or bias and never will be. They are human.

Let's look at our governmental structure. Congress? Elected. President? Elected. Federal judges? Not elected. There are about 800 of them, and a single district judge represents just 0.00125 of the judiciary. Not exactly a democratic powerhouse. For unrestrained devotees of "democracy," keep this in mind.

Courts are supposed to resolve disputes fairly. But they've morphed into a legal and financial endurance race, a sport of kings, where only the wealthy can compete. Never-ending discovery, delays and motions cause litigants to feel the hot breath of hell at the back of their necks as it burns their money in the wildfire of procedure.

For example, the Arizona lawsuit between a landfill operator and an Arizona city over yard waste contaminating trash highlights the systemic issues. The case dragged on for a decade, cost $7 million in legal fees, and ended with a "win" worth just $280,000. "Glendale wins legal dispute," Arizona Republic, Jan. 12, 2020, Page ZA07. Even winners lose, ripped apart by the unmerciful teeth of the judicial system.

Whether elected or appointed, judges aren't free from political or financial pressures. Perhaps worse, referring to honest judges, the late Judge John Molloy put it, "I've known very few judges who, after sitting on the bench for ten years, didn't think they were sitting at the right hand of the Divine One." (Molloy, John Fitzgerald. The Fraternity: Lawyers and Judges in Collusion. Paragon House. Kindle Edition, Loc. 1020.). Arrogance, inefficiency, corruption and bias have eroded public trust - and properly so.

A judicial appointment requires currying favor with influential political figures, while election campaigns demand name recognition and public support. Competence and fairness are too often secondary to becoming a judge.

This unchecked authority fosters a system rife with grief: litigants feel victimized, wrongful criminal convictions occur, guilty criminals walk free, civil cases are arduous and all are expensive. Honest but incompetent judges are appointed, court calendars are congested and litigation costs spiral out of control. Worse still, outright judicial corruption does exist and often gets full press coverage, further damaging the system's credibility and usefulness.

Litigants are in a judicial version of being in Edgar Allan Poe's Pit and the Pendulum. The system is the razor-edged pendulum swinging back and forth, slowly descending, slicing ever more money, time, and life from the victim as it swings. The system. The blob.

Let's set all that aside for the moment and examine the deeper issue of who selects the decision-makers. The judges. Who will decide the LFRA case?

The answer is unelected and unchosen judges, judging their own rules in their own court. Figures wearing black robes, banging the scythe of justice - the gavel. The deciders of the LFRA case. The Grim Reapers of judicial doom.

It could be different.

A radical, yet simple fix

A three-judge panel ensures diversity of opinion, reduces the risk of bias, incompetence and corruption weighing too high in the judgment, and enhances the likelihood of informed, fair decisions. 

This reduces bias, corruption, and incompetence while ensuring judges actually know the subject matter. TV's Hot Bench and the French legal system already use multi-judge panels.

Let's take it further than the French or Hot Bench by letting litigants have a say in who's judging them.

Let litigants pick their judges. Here's how:

 Each side picks one judge.

 The two judges pick a third to preside.

 No juries.

 No random judicial assignments.

This system can be adapted for multi-party cases or other complexities and appeals; however, the core idea remains the same.    

Why it works

Judges chosen by the parties are more likely to be competent and fair or at least balance each other. Even in criminal cases, reputations would matter. Need help choosing? We already trust reviews on Yelp, Consumer Reports and Amazon - why not have ratings for judges?

If one party refuses to pick a judge, the other side picks two. A simple incentive: no pouting allowed. And if you help choose your judge, it's tough to complain later. The obvious results are fewer appeals, a more economical system, faster resolutions to controversies, and less drama.

Litigants can hardly moan and groan about the judges if they participate in the judicial selection of their cases. I suspect this will translate into fewer unhappy litigants and far fewer appeals.

The litigants control their destiny.

A practical path forward

We don't need to scrap the entire system overnight. The new system can run parallel to the existing one. It can even fit within the existing framework. The President could nominate judges selected by the parties. The Senate could then consent. Making it a perfunctory process instead of the miserable system of judicial nominations and Senate approvals now in place. Thus, removing the political process.

Once a person becomes a judge, that person remains a judge for life and does not need to go through the nomination process again. The system is self-policing because if the individual does not do a proper job, he will not be selected often or, perhaps, ever again. No more political games in judicial appointments - just competence and reputation deciding who gets picked.

And let's stop wasting time fighting over who can practice in which court. Let litigants pick their own counsel, lawyers or not, period.

Conclusion

A fair, accessible, timely, and cost-effective judicial system is the backbone of a prosperous society. The current system fails to deliver on these ideals, but the three-judge panel can restore trust, efficiency and fairness to our courts.

No more decade-long lawsuits over yard waste. No more judges assigned like a bad blind date. Just a court system that works. Imagine that.