Empty Robe Syndrome

It is not at all clear why President Barack Obama has abandoned the federal courts, but he has. One of nine judgeships is vacant. There are 17 vacancies on the  federal appellate court, and 85 vacant district court seats. The president has not even nominated enough candidates to fill half of these positions. It is shameful neglect from a president who ought to know better than to ignore the courts. The president did graduate Harvard Law School, after all.

But perhaps that is the problem. I've only met a few Harvard Law graduates who condescended to appear in the nation's trial courts, where real people get hurt and submit their lives and destinies to the regard of strangers. And these lawyers were all federal prosecutors, one, David Ring, as good a trier as any I have met in open warfare. But he is an exception. It seems that lawyers graduating from the law's glitter factories have an unhealthy disregard for what goes on in the nation's trial courts. They want to do bigger and better things, like run the world, or be a professor or law school administrator, or be president of the United States.

I've said it before and I will keep saying it until someone listens: we need more trial lawyers as judges, and that includes as judges on the nation's highest court. Packing the courts with former federal law clerks and law review types yields a sterile sort of jurisprudence, with legal doctrine taking the place of the felt necessities of justice.

I cannot recall the last time I saw a public defender appointed as a federal judge, to either the trial or the appellate court. Indeed, I think it is the case that there has never been a public defender on the United States Supreme Court. Yet there are former prosecutors aplenty on the bench. When one gets appointed with trial experience, such as was Justice Sonia Sotomayor, some contend it represents diversity. Sadly, they are right. There are not enough folks with trial experience on the bench. But would the republic crumble if a person who actually stood next to a person, a real, live, breathing person, accused of a crime and entering a tremulous not guilty plea, were to be appointed judge?

Partisan gridlock is said to be the cause of the number of unfilled slots on the bench. "The vacancy crisis on the federal bench is not a partisan issue," writes Jonathan Bernstein in a piece entitled Empty Bench Syndrome on the op ed page of this morning's New York Times. "Without enough judges, cases are delayed, lives are disrupted and rights are violated."

I've got news for Mr. Bernstein. Even with a fully-stocked band of gavel wielding jurists, lives are disrupted and rights violated in the courts. The law's plantation masters typically come from the same class, and share values, commitments and perspectives alien to many. Besides,  it's hard to light a fire under a judge wearing an asbestos robe for life. The judiciary is expert at creating exceptions to every rule when it serves its interest. The right to a speedy trial, for example, yields every time when a judge is just too busy to get to a case.

Sure, partisan gridlock is a problem.  Senator Mitch McConnell and his band of Republican obstructionists tap dance around the corpses of the nation's founders, insisting that judges swear fidelity to the intentions of the dead, as though newly arrived Americans and strangers among us give a rat's ass about the powder  Thomas Jefferson used to powder his wig. Originalism is a parlor trick used by the living to justify their preferences by fidelity to a distant generation.

Senator Reid and the Democrats don't look much better. Sure, they are in the majority, but what are they doing with their clout? Are they pressing the president to nominate candidates for judgeships who know what actually happens in a courtroom? Or are they content to play footsie with folks who thinking reading about something is the same thing as being present at an event?

Leave the courts vacant, I say, if they are going to be filled with one empty robe after another. But better, far better, Mr. President, would be a commitment to make the courts something other than the preserve of a privileged elite. Put some people's lawyers on the court. We've nothing to lose but the specter of a judiciary sadly becoming detached, irrelevant and out of touch with the lives court rulings often transform.


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