Picking a Judge for the U.S. Supreme Court and Elsewhere

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!”

Licensed to Lie Powell, Sidney Best Price: $17.87 Buy New $23.93 (as of 05:55 UTC - Details) 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/

Reprinted with permission from Sic Semper Tyrannis.