The Cloning of Judges: Judicial Appointment Process Tainted, but not By Trump

The Cloning of Judges

The inception of the Trump administration when there are a hundred vacancies on the lower federal courts presages unedifying controversies about ‘pop issues.’ Our contemporary Senators have little interest in permanent things: enforcement of horizontal and vertical separation of powers, protection of procedural due process , and predictability in the civil law. Yet for a series of classical writers from Aristotle and Aquinas to Montesquieu, corrective justice involving restoration of the status quo and punishment of deviations from it was the central function of judges; distributive justice changing society was a matter for the legislature.

Judge Bork, beset with five days of questioning about ‘privacy’ and abortion, escaped from the hearing room without a single question being asked about criminal procedure, criminal sentencing or federal criminal jurisdiction.

To use today’s burning issues in assessing nominees is folly. Justice Mc Reynolds owed his appointment to his record as an antitrust crusader; Justice Sherman Minton’s appointment was due to his consistent support of the New Deal. Their prior records did not predict Mc Reynolds’ hostility to the welfare state or Minton’s conservatism on civil liberties issues.

There is reason for grave concern about judicial selection, and this concern owes nothing to the election of Donald Trump.

A pattern has developed. The road to appointment begins with support of a well known ‘conservative’ or ‘liberal’ law professor; proceeds to the chambers of a federal appellate ‘feeder’ judge and thence to a Supreme Court clerkship with a like-minded justice. Thereafter the indoctrinated person may bide his time in the White House Counsel’s office, the office of the Solicitor General, or the Office of Legal Counsel, if his party is in power, or in a large Washington law firm, congressional committee staff, advocacy group or East Coast law faculty if it is not. As Dean Paul Carrington has noted, such careers do not foster “intellectual modesty and self-restraint. . . Especially so if they have after graduation led sheltered careers as law clerks to judges and Justices and other high public offices.”

Two courses of action are fatal. One must not heed Justice Brandeis’ admonition to “go back to the States” and must not favor curbing the federal executive. The umpire in federal-state disputes and those between Congress and the President is chosen by one of the contestants. Our federal judges thus do not heed the admonition of Jefferson’s first inaugural address: “The support of the State governments in all their rights as the most competent administration for our domestic concerns and the surest bulwark against anti-republican tendencies.”

Advocacy groups favor appointment of federal appellate judges, with known positions on fashionable issues. State court judges know about criminal cases and family law and private practitioners know about legal costs and the private economy, but Senators do not care about such things.

This is something new. Justices Holmes, Cardozo and Brennan came from state courts; Justices Hughes, Stone, Jackson, Black, Powell and Rehnquist from political offices; Justices Brandeis and Powell from private practice; Justice Frankfurter from the legal academy. The second Justice Harlan was appointed from the federal appellate bench, but he had served there for barely a year.

Federal judicial appointments were once terminal appointments, not steps on a career ladder. Trimming for office is sometimes quite visible. Judge Bork was accused of it, at least in his speeches, if not opinions; the judges of the District of Columbia Circuit, almost all candidates for promotion, have not been profiles in courage in terrorism cases. Indeed, they have virtually nullified the writ of habeas corpus.

An inordinate number of judicial appointees to lower courts have been either U. S. Attorneys or federal magistrates; one study revealed that 175 out of President Obama’s 300 appointments to the District Courts had these backgrounds, 49 of them as magistrates, whose work involves passing on search or arrest warrants or setting bail; they become effectively part of the prosecutorial establishment in their daily associations. The work is repetitive and those who embark upon it at an early age do so with future promotion in mind. Unfortunately, they become walled off from the preoccupations of the citizenry at large.

Two other factors poison the selection process. The first is political partisanship, departed from in recent times only by Gerald Ford. Yet Winston Churchill in his address to the Italian people in 1944 enunciated seven “simple practical tests” by which freedom could be known in the modern world, the third of which was: “Are the courts of justice free from violence by the Executive and from threats of mob violence, and free of all association with partiucular political parties?”

A second peril is the new vogue for ‘diversity’, which already has produced judicial impeachments. Judges who think of themselves as members of representative bodies are apt to be unrestrained in the exercise of their powers. But George Orwell once declared: “The hanging judge, that evil old man in scaerlet robe and horsehair wig, whom nothing short of dynamite will ever teach what century he is living in but who will at any rate interpret the law according to the books and will in no circumstances take a money bribe, is one of the symbolic figures of England.” The Attlee Government’s judicial appointees were almost all products of Eton and/or Oxford,with long experience at the private bar who regarded themselves as neither revolutionaries nor counter-revolutionaries and who left social reforms unobstructed. Justice Holmes once said: “ in the state courts at least, there has been too little rather than too much [Back Bay in appointments]. Men to whom all ideas and all books come easy rarely are found outside that class.” Although the detached Holmes is remembered as an apostle of majority rule, and tolerance of controversial speech and legislation, people forget that he also wrote the first opinion, Moore v. Dempsey, applying the Bill of Rights to state criminal procedure.

Let us hope that President Trump looks to the state courts and to private practioners with varied experience , and even to some Democrats, for his judicial appointments. In doing so, he will rescue the federal courts from the political mire into which they are sliding, and will help restore government by consent of the governed.

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