The next time your hear a judge whining about the vanishing trial, tell him or her to cut the crap and let the litigants get it on. Trials are vanishing because trial lawyers are being papered to death with meaningless bullshit. That's because most judges have about as much trial experience as a nun in a whore house: You can read all you want about what's like to get screwed, but until you're flat on your back screaming "Jesus," all you know is what you've read. Nobody ever got pregnant reading pulp fiction.
Dahlia Lithwick's piece in Slate yesterday just plain rubbed me the wrong way. Lithwick notes that partisan gridlock has resulted in vacancies in 102 of 854 federal judgeships. This product of partisanship has created a non-partisan crisis in the courts. "Every day Americans look to the courts to address problems affecting their daily lives. With the high number of vacancies, their ability to stand up for their rights will be unacceptably delayed," Litchwick quotes Nan Aron at the Alliance for Justice as saying.
I've got news for Lithwick: Fill the court with a bunch of paper-pushing bench jockeys and ordinary Americans still aren't going to get justice. The courts don't function because they have succumbed to a managerial ethos. Rather than let cases proceed to trial, judges are papering lawyers to death. The reason Americans lack confidence in the courts is that most Americans can't get their cases heard in any meaningful way in court any longer. Judges are killing the jury trial.
The problem with the courts isn't a lack of judges; it is the sort of judges we get. There is a dearth of trial lawyers on the bench. What we end up with are transactional lawyers or so-called litigators -- folks whose view of lawyering is confined to walking the desolate path of paper trails. Hence, pre-trial management reports, damage analyses, interrogatories, requests for production, motions for more definite statements, motions to dismiss, motions for summary judgment, pre-trial memorandum, trial briefs: I suspect most federal judges wet themselves at the prospect of facing a jury because, truth be told, they have never faced a jury as a lawyer.
Connecticut has a full complement of Article III lifetime appointees to the bench, but still the docket creeps: Dark courtrooms are unoccupied while keyboards click in chambers. Permitting juries to hear cases seems to be a dreadful prospect. An imperial judiciary doesn't want we the people anywhere near the administration of justice. The rare case that gets to a jury has run a gauntlet of judicial manipulation that leaves little for jurors to decide. And then, on the civil side, judges are free to hack away at damages or set aside a judgment they don't like. Popular distrust of the courts is not due to vacant judgeships; no, discontent with the courts arises from the kind of judges doling out justice.
Jury trials were once a crown jewel in the social life of small-town America. In the days before radio and television , folks flocked to courtrooms to watch the great dramas of the day unfold. Advocates bedeviled not just jurors but spectators with their rhetoric, and juries, speaking quite literally as the conscience of the community, were free to decide both questions of fact and law. A jury trial was something akin to a constitutional convention; great issues were placed before the community in a public forum.
Times have changed.
Explicit jury nullification has been abandoned in the federal courts and in the overwhelming majority of state courts. Television has made a mockery of the judicial process with cheap and easy entertainment taking the place of forensic contests. Those cases that get to trial are rarely reported any longer in an era of declining newspaper subscriptions: many papers economize by eliminating court reporting. And, worst of all, judges now seek to manage cases before they get to trial, eliminating most conflicts from the light of day and deciding cases based on mere passage of papers. Jurors, once the heart and soul of a community, are marginalized; judges are lionized. Juries are increasingly unnecessary.
If there is a crisis in the courts, it is not because there are too few judges. Rather, the crisis arises from the fact that few judges, even on the Supreme Court, have any real comprehension of what a trial is. Trials are vanishing, and so is public confidence in the courts. Putting a fresh batch of judges on the bench won't change a thing if those judges have the heart and soul of a backroom fixer. If we want public confidence in courts, we must restore trial to the role it once had as a public means of resolving conflicts. Let juries speak, and put the umpires back behind the plate, calling balls and strikes and leaving the game to those who know how to play it. Or, for those who you who insist on metaphorical consistency: send the virgins back to the convent.