A Crisis of Judicial Legitimacy

Constitutional Foundations of the American Judicial System

Article III of the Constitution vests the judicial power of the United States in one Supreme Court and in such inferior courts as Congress may establish. This power includes judicial review, the authority to interpret the Constitution. Landmark decisions like Marbury v. Madison and Brown v. Board of Education reveal how deeply judicial rulings shape the nation. The courts’ role as final arbiters of justice is not ceremonial; it is essential to the survival of the republic.

How We Got Here: The History of Judicial Selection

Originally, judicial nominees were personally known to the President and reflected the moral principles of the founding generation. With the rise of political parties, the route to the bench shifted from moral integrity and legal excellence to political loyalty.

Most modern judges lack real trial experience, coming instead from academia, the bureaucracy, or large corporate law firms—”Big Law.”

Capturing the Nomination Process

The influence of the Federalist Society and political figures like Leonard Leo has transformed the judicial nomination process into an ideological vetting exercise. Funded by powerful corporate interests, this machinery ensures that judges prioritize corporate and political interests over individual rights and liberties. This capture of the nomination process threatens the independence and legitimacy of the judiciary.

False Metrics: Education and Prestige Are Not Qualifications

The law school a nominee attended, their clerkship, or their employment in elite law firms or agencies reveals little about their fitness to judge. These metrics overlook the only meaningful qualification: demonstrated experience and integrity in the courtroom as a trial lawyer.

Trial experience ensures that judges understand the adversarial process and the real-life stakes of legal proceedings. The courtroom, not the lecture hall or boardroom, is where legal acumen, fairness, and public trust are earned. That is where a judge’s character and competence are tested and revealed. The path to the bench must begin in the courtroom.

The Myth of the Universally Qualified Lawyer

The belief that any licensed attorney is fit to serve as a judge is a dangerous myth. Like surgeons, judges must be trained and tested through experience. There is no justification for on-the-job learning in roles with lifetime tenure and enormous power.

The systemic effects of unqualified judges are widespread and pernicious. Unqualified judges undermine justice and erode public trust. Nominating ideologically aligned but inexperienced judges produces poor jurisprudence, public cynicism, and injustice, especially for marginalized communities who lack economic and political power.

To rebuild trust and legitimacy, the judiciary must be diverse. Diversity must go beyond race and gender. Judges should be drawn from public defenders, solo practitioners, and trial lawyers, not only prosecutors and corporate attorneys. Without it, courts cannot reflect, represent, or understand the lives of ordinary Americans.

A Better Path Forward

Judges must be selected based on their demonstrated trial experience and integrity. Demand that appellate judges be drawn from respected trial judges. Justice cannot be served by those who have never stood in a courtroom on behalf of a client. Until these changes are made, equal justice under law will remain a promise unfulfilled.

Reclaiming Judicial Legitimacy

We must establish public control over the judicial. That means restoring the nomination process to one grounded in competence, courtroom experience, and public service, not ideology, pedigree, or political loyalty. The future of justice in America depends on it.