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Would a 95% rate of being overturned on appeal have any effect on a judge's career?

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  • Isn't it obvious? It might well impede their career progress to sit in higher courts. But it might also depend on the jurisdiction. In some corrupt regime positions may be up for sale or subject to nepotism, and have no relation to competence. Jul 8, 2023 at 17:49
  • but no problem in continuing in their present role until retirement?
    – Jon
    Jul 8, 2023 at 17:52
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    Pro the question: Thousands of U.S. judges who broke laws or oaths remained on the bench. It's not an exact fit but perhaps you'd like to fill out the question a bit, to show why you've asked the question. Jul 8, 2023 at 17:59
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    I dont have an agenda. I was honestly interested in the presence or absence of checks and balances for this
    – Jon
    Jul 8, 2023 at 18:00
  • But where? If you are US there is a far bigger world beyond its shores. This is a global site (but typically the English speaking world). Jul 8, 2023 at 18:36

2 Answers 2

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The mere fact of being frequently overturned on appeal would only have reputational consequences and secondary effects on career advancement (not suggesting these are minor effects).

But being overturned at a rate of 95% suggests that the judge might not be conducting themselves with integrity or not being diligent in the performance of their judicial duties. These are two core ethical principles set out by the Canadian Judicial Council (CJC). (However, the CJC is clear that these principles "do not set out standards for defining judicial misconduct.")

Depending on what is leading the judge to such a high rate of appellate intervention, the underlying cause may warrant removal. The possible reasons that the CJC can recommend a judge to be removed are listed at s. 65(2)(a) to (d) of the Judges Act:

Where, in the opinion of the Council, the judge in respect of whom an inquiry or investigation has been made has become incapacitated or disabled from the due execution of the office of judge by reason of

(a) age or infirmity,

(b) having been guilty of misconduct,

(c) having failed in the due execution of that office, or

(d) having been placed, by his or her conduct or otherwise, in a position incompatible with the due execution of that office,

the Council, in its report to the Minister under subsection (1), may recommend that the judge be removed from office.

For some examples where the CJC recommended removal of a judge, see:

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Does being overturned on appeal have consequences for the careers of trial judges?

In general no. Indeed, federal judges serve for life. And, judges in some state courts serve for life, or serve until a majority of voters vote to not allow them to serve another term, or they are impeached or reach a mandatory retirement age.

Merely making lots of incorrect decisions that are reversed on appeal isn't even a ground for impeaching a judge, although an impeachment decision of the legislature (which is exceedingly rare) is not subject to judicial review.

Would a 95% rate of being overturned on appeal have any effect on a judge's career?

It is unthinkable that a judge who had 95% of his or her trial court decisions overturned on appeal wasn't also guilty of other serious misconduct that could have the judge removed from office or impeached.

I can only think of two judges ever, in all time, who have had that kind of track record. It just doesn't happen outside a pervasively corrupt organized crime relationship.

The one case I can think of that approached that level involved two rural Pennsylvania juvenile judges who were bribed to convict kids who were innocent or guilty of only minor crimes, and send them to juvenile prison by a private prison operator (the judges and the private prison operator were both later convicted of multiple felonies and the judges were also kicked off the bench and disbarred and successfully sued for about $206 million by the 300 or so victims of the scheme). After the fact, all of these judges' convictions were overturned in a collateral attack on the convictions (even though most of the kids who were convicted were guilty of at least something anyway), but even then, only a tiny percentage of the cases were appealed immediately (i.e., before the corruption scandal was revealed), and only some of those direct appeals from the juvenile convictions prevailed.

Typically, about 10% of a judge's final orders, plus or minus, are appealed and about 30%-70% of them are overturned on appeal (so, 3-7% of their final orders are ultimately overturned on appeal). Appeal rates are higher for criminal cases, but success rates on appeal are lower. Appeal rates are lower for civil cases, but success rates on appeal are higher.

But, if, for example, a judge final orders were only appealed 2% of them and 95% of the case appealed were reversed on appeal, that would actually be an exceptionally good track record.

Almost always, if someone appeals a case and it is reversed on appeal, the case is sent back to the same judge after the appeal to do what the appellate court told the judge to do. But in perhaps 1 in 5,000 or 1 in 10,000 appeals, the appellate court orders that the judge be removed from that particular case. Usually this happens when the judge is reversed on appeal the first time, the case goes back to the judge, and the judge then defiantly disregards what the judge was told by the appellate case to do so the case is successfully appealed again.

The other scenario that comes up, usually long before it gets very extreme, is that an older judge begins to get Alzheimer's or some similar form of dementia, and begins to make more, and more obvious mistakes, or stops showing up to work. In the most state courts, in this fact pattern, a judge can be removed for having a disability that prevents the judge from doing the judge's job, if the judge doesn't voluntarily step down after strong persuasion from judicial regulatory officials and fellow judges (which is what happens the vast majority of the time in this fact pattern).

It is harder to force a judge to resign for disability in this fact pattern in the federal system, and indeed, one such case involving a 96 year old federal judge is currently playing out in the federal courts right now. It is unclear how it will be resolved.

N.B. In common law countries that strong default rule is that a case that is reversed on appeal is returned to the same judge if it has to be remanded for further trial court action as noted above. In most civil law legal systems, such as those of continental Europe, the default rule is that a case that is reversed on appeal is assigned to different judges for further proceedings in the trial court following the reversal on appeal, if further trial court proceedings are necessary.

U.S. and Non-U.S. Judicial Career Paths Compared

In almost all civil law countries, and in most common law countries, the judiciary is a career that one moves up the ladder in after being appointed in a civil service merit based appointment system. In these systems, if you managed to get hired in competitive merit based applications for judgeships at all, you start as a judge handling small claims cases and petty criminal matters and you work your way up over time to a general jurisdiction trial court that handles the most serious matters and then to the appellate courts. And, non-lawyer judges are not allowed (except as "lay judges" who confer together with professional judges on a single case basis in serious criminal cases as quasi-jurors).

Thus, in most countries, the likelihood that a grossly incompetent judge who constantly makes incorrect legal rulings gets appointed in the first place, or that such a judge moves up beyond the lowest level limited jurisdiction court, is very low indeed (barring later in life disability for some reason or another, or corruption).

This is not the way that the judgeships in the U.S. are filled, so the damage that a high reversal rate might due to a judge's potential for career advancement in Canada or England or France or Japan or Germany is not nearly so significant a factor in the U.S.

The typical process in the U.S. is for a lawyer to be distinguished in a career as a lawyer and also politically connected, and then to either run for office as a judge in an election, or to obtain a political appointment as a judge to a particular court. Many low level elected judges in the U.S. (thousands of them since some big states like New York and Texas select their low level judges called justice of the peace on this basis) are not even lawyers.

Often, a lawyer's first judicial post will be as a general jurisdiction trial court lawyer or as an appellate court lawyer, despite having no prior judicial experience. U.S. Supreme Court judges often have prior experience (often brief) as a federal U.S. District Court or U.S. Court of Appeals or state supreme court judge, but this isn't a requirement and there have been many exceptions to that rule over the years.

The vast majority of U.S. judges appointed to serve as judges on a particular court will never serve as a judge on any other court later in their career. Working up the career ladder of courts from less important ones to more important ones, which is the predominant norm in most of the world, is the exception to the rule in the U.S. judicial system.

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