Picking a judge for the U.S. Supreme Court and elsewhere

By Robert Willmann

In the "old days", people appointed to be federal judges were usually practicing lawyers who had developed a positive reputation in the community.  This was especially the case when picking federal district court judges, the trial courts.  But   in the 1980's, the focus began to slant towards being agenda-oriented and result oriented, which would dovetail with particular political, social, and economic ideas.

The lawyers nominated since that time seem to not always have had a broad, practical experience.  Nor have they spent a lot of time scratching around in the courthouse.  The great Texas trial lawyer Warren Burnett was the finest extemporaneous speaker I have ever listened to [1].  One time, when complaining about how bureaucratic the practice of law had become, he said, "I remember falling out the back door, hunting for the client while the secretary was hunting for the file, and if we found either one, the trial was going to take place!"

All laws, including the awful thing called "administrative law", have an effect on real people in the real world. That is what matters, but attention to it has been drifting away.  Especially for federal courts of appeal and the supreme court, the pool of people from which nominations have been considered has become smaller, even though many others are well-qualified for the job.  This is producing the equivalent of what Army Col. David Hackworth called "Perfumed Princes".  A federal judiciary of perfumed princes and princesses.

The nomination of a judge to the U.S. Supreme Court for the vacancy after the death of Ruth Bader Ginsburg will be announced this afternoon by president Donald Trump.  Leaks to the media yesterday said it will be Amy Coney Barrett.

It is a world of individuals.  A person without much experience, or mainly an academic, can also be fully capable of analyzing a legal doctrine, visualizing its application, and can have the guts to make a courageous ruling.

Exercising judicial authority -- or any authority, for that matter -- requires a sense of humility and humanity.  But seeing it happen is not as commonplace as one might think.  After four and a half months, 11 federal judges, and two different federal courts, a request by the Justice Department to dismiss the criminal case against Gen. Michael Flynn has still not been granted.

[1]  https://www.texasobserver.org/1132-a-creature-of-the-courts-warren-burnett/

Comments

[Bob of Bonsall]

Nice to see Col. David Hackworth remembered. His memoir, About Face is an excellent read.

[turcopolier]

Bob of Bonsali

He would generally call me "buddy" or "pal." A great honor. He said he did not think me one of the assholes, of whom there are so many.

[Fred]

Robert,

Those judges are simply legislating from the bench, just like many of their predecessors have been for years. As to General Flynn's case, to quote the article you linked to:

"The appeals court ruled that Burnett’s summation had been so cogent and so well-expressed that he himself had corrected the error, and so upheld the conviction."

Sullivan will probably pull the same stunt on Sydney Powell and force her to go to the Supreme Court to have the writ of mandamus enforced.

[Deap]

Long felt there should be two training tracks within the study of law: (1) bench jurists and (2) lawyer practitioners- also divided into two sub categories: court lawyers and transactional lawyers - not unlike the UK barristers and solicitors.

Voters often ask how much "trial experience" a judicial candidate had prior to being on the bench - when in fact they should be asking how much legal scholarship and neutral jurisprudence engagement they have. Not just partisan infighting either as a plaintiff or defense client representative in court. Trial lawyers are cage match gladiators - qualities that do not necessarily translate into sober court decision makers.

Being a trial lawyer is exactly the wrong kind of experience to evaluate fo the position on the bench.. Because it is too narrow, too adversarial, too often manipulative abusing both procedure and evidence. Those are the qualities one wants in a court case lawyer; but they demonstrate no skill benefit for ultimately a jurist.

The jury tries the evidence as skillfully presented by the trial lawyers on both sides. The judge rules on the law. The judge should be a trained jurist, a neutral legal overseer; not just a trial lawyer who got kicked upstairs.