IF you or a loved one needed life-saving surgery, would you choose a surgeon who had only read the textbook, or would you want a doctor who’d performed surgeries?
You’d select a person who hadn’t just mastered the texts, but also had mastered the craft.
Answer this question, then: Why, when it comes to the selection of judges, do we almost routinely say experience doesn’t matter? Trial lawyers, the folks who read the law and then march into a courtroom to try to use what they’ve read to help a real, living, breathing person in need, rarely get to the bench.
Consider the highest court in the land, the U.S. Supreme Court. It is composed of nine justices, appointed for life. As near as I can tell, only one of them, Sonya Sotomayor, ever stood in the well of the court and asked a jury for justice — and when she did so, it was decades ago as a prosecutor.
There is no one on the high court with any experience defending people accused of crimes. Most of the justices attended either Harvard or Yale universities, clerked for other justices, and then worked in big law firms, academia or the government before their appointment to the bench. Brilliant theoreticians all, but practice conceived isn’t theory relieved.
The law is not like mathematics. There aren’t “right” answers to most of the questions in a courtroom. Practitioners know the standard for evaluating whether a judge’s ruling on the admissibility of evidence isn’t the one used in a mathematics exam — correct or incorrect. One of the great misconceptions about the law is that it is a vast Platonic system, with legal doctrines serving the role of variables in justice’s unchanging equation.
The truth is that appellate courts evaluate the evidentiary rulings of trial court judges by asking whether the judge abused his or her discretion: There’s a lot of wiggle room in the law’s formulas. It is accepted and understood by the courts that there often is not a single right answer. Rather, a range of responses is appropriate.
Given the broad discretion judges have, experience matters, no doubt about it.
Unless you are the CEO or a large corporation, the president of a university, a law professor or a trust-fund baby, it should bother you that so many of judges are selected from the ranks of privilege. When you stand asking for justice, wouldn’t you rather face a jurist who experiences the same challenges you face?
U.S. Sens. Richard Blumenthal and Christopher Murphy now are interviewing candidates to fill a vacancy on the U.S. District Court in Connecticut. This is a lifetime appointment.
By custom, the senior senator in the president’s party forwards to the White House the name of nominees to the federal bench in a given state. The president nominates a candidate, and the Senate either confirms the candidate or not.
In recent years, confirmation hearings have become partisan blood sport — proving yet again, as though proof were necessary, that the selection of judges is a political act steeped in values, not a mathematical exercise.
Sadly, the selection of nominees for the federal trial bench is a secret process.
Just before Christmas, Richard Kehoe, an aide to Blumenthal, sent emails to the Connecticut Bar Association and the Connecticut Trial Lawyers Association announcing that interested parties should contact him if they want to become a judge. Interviews are scheduled at an undisclosed location Jan. 25-26, according to one email.
The last time interviews for a federal judgeship were in Connecticut, a secret committee conducted them on behalf of the senators. Applicants were required to sign confidentiality agreements. No one was to disclose the names of the committee members, the questions asked during interviews or, I suspect, the names of the other candidates.
Among the committee members were a Yale law professor or two, and a jurist with long-standing connections to Yale. I don’t know whether any Legal Aid lawyers or criminal defense lawyers were on the committee: I suspect there were none. Most of the committee members, if not all, were either big-firm/big-money or academic/judicial types whose idea of defense is protecting either a fat wallet or an institution’s prerogative.
The secrecy of these proceedings is offensive. It’s only justification can be that candidates will not come forward unless their interest in the position is kept confidential: after all, how many clients would be happy to learn their lawyer is looking for another job?
But politics being what it is, the names of candidates are routinely leaked to the press by the very political operatives who require confidentiality. The identity of the top couple candidates are given to the state’s top papers as part of the vetting process.
Walk into a federal courtroom and you are at once overcome with the dignity and majesty of the law. Defending people accused of crimes is a high calling.
Go ahead and scoff at the notion. When you or a loved one is accused, you will want a lawyer who views his or her job as the ultimate in law enforcement — you cannot take my client’s life or liberty without obeying every jot and every tittle of what the law requires. No matter how horrible the allegation, the law is at its best when it is put to the test in defense of the accused.
But why in a judicial system giving judges such enormous discretion in how to apply the rules do we ignore criminal defense lawyers when it comes time to appointing judges? What institutional imperative requires that only those who understand, love and have served the imperatives of corporations, government and large institutions should be given this lifetime, plum appointment?
Why not open the nomination process to plain view? Why not solicit nominees from the public at large? Why not a criminal defense lawyer on the federal bench?
I don’t have answers. Perhaps Richard Kehoe, Blumenthal’s aide, does. Call and ask him. His telephone number is 860-258-6490.
Reprinted courtesy of the Journal Register Company.