A few more thoughts on others’ thoughts on the idea of this blog. This could lead to an infinite regress of thoughts on thoughts, I suppose. But I digress. Just briefly, then:
Objection: Every losing litigant thinks he got screwed and blames the system or the judge.
Answer: Not entirely true. Many do think they got screwed. Many don’t. Of those who do, most do not blame “the system” or the judge – they blame their lawyer. It’s not fair, but that’s the way it is.
Objection: Concerted action by lawyers has been tried and failed.
Answer: More like “proposed” and failed. I’m not aware of anything being actually tried. Lawyers don’t have unions. They have bar associations, but let’s not bother going there. They have certainly never collectively gone at judges: like Gamso says, there’s the contempt thing, and the risk of sanctimonious and pharisaical “ethics” accusations which for practicing attorneys – unlike judges and prosecutors – are a real risk.
In any case, this objection has merit. It’s why this effort is experimental. At some point, maybe we’ll find out if this objection is insurmountable or not.
Objection: The losers in a “strike” will be the clients who remain before the court defenseless and unrepresented.
Answer: I don’t see this one at all. In the first place, a lot would depend on the details of just what action was being taken, for how long, and so on. Second, this objection underestimates the vulnerability of the system to this kind of action. A strike wouldn’t mean that cases “disappear”, but how are they going to proceed – credibly proceed – in the face of one? Will they go with scab lawyers? How credible will those convictions be?
Will judges be pulled off the bench because defense lawyers won’t appear before them? Scott Greenfield seems to think not. He might be right. He might not be. I guess we’ll find out, if we’re lucky.
Objection: prosecutors can do the same thing.
Answer: Excuse me, but this one’s a laugh. For one thing, prosecutors are overwhelmingly favored by the status quo. Overwhelmingly. They would never, ever go on a strike against a judge. For another, even if they did – something I can’t really imagine – all that implies is an equivalence between prosecutors and defense lawyers, a level playing field. We strike against the judges we don’t like, they strike against the judges they don’t like.
Do I need to point out that a level playing field is light years ahead of where we are now? Does the objector have any idea of the degree to which the tables will have been turned if prosecutors ever felt the need to engage in a strike against a judge?
I assure you they feel no such need now. The idea would be utterly incomprehensible to them.
Thanks to those objecting for helping me think this through. Thanks to Aristotle, Aquinas and others for the format of this post.