Justices & Judges: Change the paradigm for nominating them!

Stop kvetching about individual Supreme Court Judges

Throughout the United States, for a variety of reasons, citizens are loudly complaining about decisions written by one or more of the nine Supreme Court Justices.

The problem, however, is not with any individual Supreme Court Justice but with the manner in which those Justices are selected and the pool of candidates from which they are selected.

Selecting Supreme Court Justices

Traditionally, all federal judges including the Justices of the Supreme Court are nominated for appointment by the President of the United States who is supposed to represent the majority of the voters in the last election, subject to the advice — and more importantly — the consent of a supermajority of the United States Senate—the affirmative vote of at least 60 Senators. Nothing can or should be done to change that system. The only issue for discussion is how the individuals “recommended” to the President for appointment as federal Judges are to be selected for nomination.

In the early days of the Republic, it was understood and tacitly agreed that any potential Judge was known to the President either personally or by reputation and the People accepted the fact that the Judges nominated shared the same philosophy of government and basic moral principles as the founding fathers and many were veterans of military service during the American Revolution.

After George Washington declined a third term as President and John Adams and Thomas Jefferson who had been friends from the Declaration of Independence through the ratification of the Constitution became bitter political rivals, the nomination of federal judges became a part of the political process. From the advent of the political party system during the election of 1804, the individuals who became federal judges were expected to reflect the political philosophy of the president who appointed them and the political leaders who nominated them.

The American Judicial System

The Founders stated throughout The Federalist Papers that Congress passes the laws necessary to “form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity,” and answers to their constituents at regular elections; the President executes the laws promulgated by Congress and subjects his work to review by the People in regular general elections.

The United States District Courts, the United States Courts of Appeal, and the Supreme Court of the United States (SCOTUS) — the federal court system – are generally referred to as Article III Courts because they were established in Article III, Section 1 of the United States Constitution which states, “The judicial power of the United States,” is “vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”

Section 2 of Article III explicitly states, “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; (“federal question” jurisdiction) … to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; … between citizens of different states; (“diversity” jurisdiction)… and except for “Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party,” where “the Supreme Court shall have original Jurisdiction”… the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Our tripartite system of government separating the Legislative, Executive, and Judicial powers embodies the Great Compromises the founding fathers reached during the Constitutional Convention of 1796 cannot continue to exist unless there is a fundamental change in the way Judges are selected in all the Courts of these United States; the nature of the practice of law in all those Courts; and the training and licensing of those allowed to practice in those Courts.

There is no appeal from a decision of the Supreme Court of the United States and, for practical purposes, there are very few appeals from decisions by the United States Circuit Courts of Appeals and the highest courts of each State. The Judges who sit on the benches of those courts have the final word on the rights and liberties of all Americans. They also have tenure for life.

The route to the federal bench was through the political system rather than the legal system. The few federal judges with any experience as practicing lawyers generally were not really familiar with the courtroom. They were not trial lawyers but “transactional” lawyers whose experience was with business deals and contracts or after the Great Depression and the New Deal, experienced in negotiations with bureaucrats in administrative agencies.

The few who have denominated themselves as “litigators” supervised departments filled with associates who busied themselves billing time rather than efficiently disposing of cases and controversies. As time billing became the basis for the practice of civil law in the United States, any incentive to resolve disputes quickly and effectively was quickly eliminated from consideration because it reduced the time which could be billed on a matter.

The meaning of “diversity” among judges

Judges bring to the bench the experiences of their lifetime, just as jurors bring the experiences of their lifetime into the jury room during deliberations. Experienced trial lawyers seek to draw the most diverse jury panel they can from the pool of available jurors to assure a verdict from a cross section of American Society. Our federal judiciary should be as diverse as possible in terms of background, education, and experience for exactly the same reason. It is not.

Until the recent nomination of Ketanji Brown Jackson, few, if any, Justices of the Supreme Court have had any substantial experience as attorneys trying cases in the courtroom. Those that did, as a general rule were either state or federal public prosecutors. Few, if any, have ever practiced law alone or in a small firm and represented individual human beings.

The vast majority of federal judges have been chosen from among the ranks of large time billing corporate law firms, law schools, politicians and occasionally bureaucrats. The exception that proves the rule is the late Ruth Bader Ginsburg who actually represented People rather than business corporations or the rich and famous. She was a brilliant scholar and although tenured first at Rutgers Law School and later at Columbia Law School, she left academia to co-found the Women’s Rights Project at the American Civil Liberties Union and later became its General Counsel and a full-time litigator.

Unfortunately, since the end of World War II, Judges share a common educational background. They went to conventional law schools following a curriculum that has changed very little since the days of Langdell at Harvard in the 1870s. A curriculum based on the study of appellate judicial decisions without any real understanding of the circumstances which caused the controversies to become the cases which reached the Courts for decisions. There is little if anything in an American law school which prepares a law student to represent clients in a courtroom before jury. While this is unfortunate for many civil and commercial litigants it is a tragedy for civil and human rights and often fatal for criminal defendants.

If we are to have the Justices of the United States Supreme Court reflect the American People, we must insist on certain basic qualifications for those nominated as District Court Judges, the first step on the path to a seat on the Supreme Court of the United States.

Experience trying cases before juries in the courtroom representing individuals, not corporations or institutions, should be the single qualification which cannot be ignored in the selection process for any federal judge. It is the only publicly accessible measure of the character and fitness of an individual to be a judge. Courtroom experience representing individual human beings or even prosecuting them is essential because the decisions of appellate courts have a way of exercising profound effects upon individual American citizens

The federal judiciary numbers game

Since 1804, the route to the federal bench was through the political system rather than the legal system. The few federal judges with any experience as practicing lawyers generally were not really familiar with the courtroom. They were not trial lawyers but “transactional” lawyers whose experience was with business deals and contracts or after the Great Depression and the New Deal, experienced in negotiations with bureaucrats in administrative agencies.

The few who have denominated themselves as “litigators” supervised departments filled with associates who busied themselves billing time rather than efficiently disposing of cases and controversies. As time billing became the basis for the practice of civil law in the United States, any incentive to resolve disputes quickly and effectively was quickly eliminated from consideration because it reduced the time which could be billed on a matter.

Today, Presidents look to appoint Justices to the Supreme Court of the United States from among the 179 active judges of the 13 Circuit Courts of Appeal who review decisions of the 677 United States District Court’s Judges currently sitting in the 94 United States District Court’s Located throughout the United States and the Territories. Federal judges have life tenure and even after they reach the mandatory retirement age of 65, they may continue to hear and decide cases as “senior judges.”

In recent times, Judges to the Circuit Courts of Appeal have generally been selected from among active District Court Judges. Occasionally, Presidents have reached out to individual judges from a state’s highest court and, occasionally, as in the case of Chief justice Earl Warren, who had served as Attorney General and later Governor of California.

That current pool of candidates for nomination to a seat on the Supreme Court of the United States involves, at most, less than 900 individuals, a very small pool from which to choose one of the nine most powerful political figures in American Government.
The only input from the American People in the selection of federal judges is through their Senators who must vote to approve the nomination of an individual for the position of Judge on a federal court. The nationally televised Senate hearings on the confirmation of the last three Supreme Court Justices clearly indicate that the opinions of all the people are not reflected in the makeup of the United States Senate where every state, regardless of their population has two Senators.

Coopting the Judicial nomination process

The grand scheme of Court Capture first proposed by tobacco lobbyist Lewis Powell in a secret 1971 memo was effectively operationalized by Leonard Leo who became the voice of the Federalist Society and the Republican/Conservative gatekeeper to judicial office> He and his Federalist Society provided the nominees for appointment to the United States Supreme Court by Republican presidents George H.W. Bush, George W. Bush, and Donald Trump: Clarence Thomas, John Roberts, Samuel Alito, Neil Gorsuch, Brett Kavanagh, and Amy Comey Barrett.

The inordinate influence of the Federalist Society has a great deal to do with the million-dollar contributions from a number of plutocratic family names. Among them, Coors (beer), Searle (drugs), Mercer (Wall Street finance), Scaife (banking, media), Olin (chemicals, weapons), and the Koch brothers (Donors Trust).

One of the fundamental principles which Leonard Leo and his Federalist Society hold as their basic element of American Constitutional Jurisprudence is that the Constitution of the United States was not drafted to create a political democracy but was a legal structure for enshrining property rights as supreme over all others and protecting the wealthy, especially slave owners and those with large real estate holdings from the People which comprised the majority of citizens.

We must change the criteria for nominating judges

If we are to assure “equal justice under law” for all Americans, we must change the way we nominate judges not only for the Supreme Court of the United States as well as the rest of the federal judiciary but for all the State trial courts, and all the appellate courts in each and every State if we are ever to assure that all the rights, privileges, and immunities guaranteed to American citizens by the Constitution will be enjoyed by every citizen regardless of their race, gender or economic status.

Unless we change the criteria for nominating judges, the People will lose faith in the “rule of law” and open a period of lawlessness which will eventually make a dictator and totalitarianism seem acceptable; forever ending the American dream.

The ideological and political bloodbath which we euphemistically refer to as the confirmation process for judicial nominees in the United States Senate is based on a fundamental misunderstanding of the nature of the American judicial system as are the backroom deals to appoint Judges hatched in Party Headquarters and Statehouses in each of the 50 states.

Selecting Judges in America

Since the Federalist Society coopted the nomination process for Article III federal judges, the criteria for selecting federal judges has become their political ideology. Other, more important, criteria, have been and still are overlooked.

The question every American must ask is how to determine whether the individuals nominated for judicial appointment are truly qualified to make decisions which will irrevocably affect the “rights, privileges, and immunities” of every American citizen.

It is not about formal education

What college a judicial nominee attended and what law school they may have graduated from means nothing in determining whether they will be a good judge. Whether they served as a clerk for a sitting Judge also means little in determining whether they will be a good judge themselves. Their employment as lawyers and the law firms which employed them, or their employment as lawyers by government agencies or private organizations also means little in determining whether they will be a good judge.

The only meaningful measure of whether a lawyer might become a “good” judge is their behavior in a Courtroom; the cases they have tried and the way they have tried them prior to their nomination.

The great American Lawyer myth

The American legal system of today is built upon the myth that all lawyers who are licensed to practice are qualified to try cases in the courts and that any licensed lawyer is qualified to be a judge. That a majority of the American people still accept these myths shows that you can still fool some of the people all the time.

Since you are not supposed to be able to fool all the people all of the time it is time to recognize these myths for what they are — wishful thinking.

There is no justification for providing on-the-job training for justices with lifetime tenure. There is even less justification for granting lifetime tenure to judges who have never demonstrated their skills, character, and integrity in the courtroom.

The path to the Bench must begin in the Courtroom

Ever since Henry II and his Chancellor, Thomas Beckett, ended trial by combat as a means of resolving disputes between individuals and lawyers replaced Knights as advocates or champions of individual rights and liberty, the cornerstone of common law jurisprudence has been trial by jury.

If trial court judges were chosen from the ranks of experienced trial counsel—the lawyers who try cases before juries— and appellate court judges were chosen only from the ranks of experienced trial court judges with records commanding the respect of the trial bar, the public could be reasonably sure that regardless of their personal ideologies and political convictions they would administer justice with an even hand and an understanding of the evidence in each case.

The “Piper Cub” lawyers

In 1973, the late Chief Justice Warren E. Burger recognized that “Although our system is a child of the common law, the legal profession [in America] has developed in ways that do not parallel England’s.”.… “But simply because we cannot adopt the English system does not mean that we cannot learn much from its operation.”

England separates its trial lawyers — the barristers — into a separate branch of the profession which engages exclusively in trial work. Judges of trial courts of general jurisdiction are selected entirely from the ranks of the ablest barristers. There is little or no on-the-job learning since only the most qualified barristers or trial lawyers are nominated as Judges in England.

Chief Justice Berger went on to observe that, “There are too many Piper Cub lawyers at the controls of 747 litigation.” At the time he was advocating for some kind of system to assure the competence of trial lawyers similar to the British system and criticizing the idea that anyone with a law degree who has been admitted to practice in any state can try a case in a federal court.

What is a “good” Judge?

The American common law was adopted from and paid respect to the common law of England which had been evolving since the days of Henry II and his Chancellor Thomas Becket. The American colonists did not have much use for or need of lawyers and almost anyone with advocacy skills could represent an individual involved in a case or controversy. The American colonists paid little attention to judges in resolving disputes among themselves and only became concerned when a Royal Judge was involved.

While it is easy to determine the characteristics of a “bad” judge, it is much more difficult to even make a list of what characterizes a “good” judge.

It is time for the American people to look at their legal system and recognize that many of its problems can be attributed to the careless choice of judges who make the final decisions on the laws which are supposed to govern life in America. It is time to insist that those who would be our judges have experience in the courtrooms in which they intend to preside and with the issues which bring individual American citizens into those courtrooms.

Almost every appeal starts with a trial

A judge who has no meaningful experience as a trial lawyer is not really qualified to adjudicate cases and controversies.

Limiting the judiciary to experienced trial lawyers who have demonstrated their skills in courtrooms on a regular basis assures that as judges they will be familiar with the process and understand the meaning of a trial to the individual litigants. As trial lawyers and advocates in the courtroom they will understand the case and controversy in a way no law professor or transactional lawyer can.

Insisting that all trial judges be nominated from among experienced trial lawyers will improve the quality of justice at every level of the American Judicial System. The few good judges who lacked significant experience in the courtroom are the exception which proves the rule.

Treating every individual admitted to the bar as qualified to be an advocate for a criminal defendant in which liberty is at stake or in civil rights cases in which human values are at stake, or in the myriad of cases dealing with important private personal interests is no more justified than assuming that any individual who holds a license to practice medicine is competent to perform brain surgery.

Those with sufficient economic resources or political power will always be able to retain effective advocates who will be able to overcome or at least mitigate the impact of less than skilled judges. Injustice follows from nominating Judges with little or no real understanding of the adversary process which is at the heart of Anglo-American Jurisprudence and then empowering them to make decisions determining the fate of all the other American citizens.

The failings of our judiciary are on display every time a nominee to the Supreme Court of the United States is subject to advice and consent — confirmation — by the United States Senate. There are no agreed standards for evaluating the record of a sitting Judge. The problem is exacerbated when the candidate is not a sitting judge with a body of opinions which can be reviewed. It is even further exacerbated if the candidate comes directly from a government agency or the legislature.

Just what is the “Judicial Power” of the United States

But what is the “Judicial Power” of the United States federal court system which the Constitution so carefully creates in Article III of the Constitution and Congress quickly implemented in the first Judiciary Act?

The founders of the American Republic recognize that authority and power without checks and balances had always led to tyranny and totalitarianism throughout world history. History taught them that eventually the reign of every tyrant ended in war or bloody revolution.

They crafted a Constitution which contained checks and balances to prevent a legislature and an executive even though elected by the people from becoming a “supreme” power. As the ultimate check and the final attempt to balance the competing forces and powers of legislatures and the executive, the Founders added Article III to the Constitution which provided for a Supreme Court and permitted a system of lower courts to evolve largely through compromise between the Congress and the President.

Federal jurisdiction extends to “cases and controversies” which involve individuals, not issues. Supreme Court decisions have established that Congress can authorize federal courts to hear cases in which a federal question is (1) a logical antecedent of a plaintiff’s claim whether or not it is contested; or (2) the basis of a defense actually raised even though that defense may not be dispositive; or (3) the basis of the decision made by a state court. “Federal question” jurisdiction also exists when a litigant is a member of a class that Congress seeks to protect or the area is one in which Congress has taken an interest under an Article I grant of power.

Starting with the opinions of Chief Justice John Marshall, it has become clear that the most important power of the Federal Courts and their Judges is “judicial review,” the authority to interpret the Constitution.

In 1803, during the generation following ratification of the Constitution, Chief Justice Marshall, in Marbury v. Madison, stated without any equivocation, “An act of the legislature repugnant to the Constitution is void…. It is emphatically the province of the judicial department to say what the law is.”

The Supreme Court of the United States also has the power to overrule its own prior decisions. Most notably in 1954, the Supreme Court ruled in Brown v. Board of Education of Topeka that segregating students by race in the public schools was unconstitutional; reversing the Court’s 1896 decision in Plessy v. Ferguson that approved racial segregation based on the doctrine of “separate but equal.” More recently, the 2022 Supreme Court overturned its prior decision in Roe v. Wade. Nevertheless, the Supreme Court often defers to the doctrine of stare decisis, “let the decision stand,” and makes a conscious effort to “distinguish” rather than overturn decisions made by past Courts except when it is a matter of substantial contemporary political concern.

With a clear understanding of what Judicial Power is supposed to be in the United States and what the Supreme Court of the United States is supposed to do, we should be able to determine more appropriate criteria for selecting Supreme Court Justices before granting them lifetime tenure and permitting them to wield the Judicial Power of the sovereign People of the United States.