The State of the Federal Courts, 2010 Edition

Reading Chief Justice John G. Roberts call for an end to partisanship in the selection of federal judges felt alot like watching professional football players sing the national anthem before a game: For a brief moment, it's all peace and unity. Once the whisle blows, expect the hitting to be hard, fast and furious. The chief's singing of judicial Kumbaya before the New Year began was hardly persuasive. But for the machinations of the right, he wouldn't be sitting where he is today. 

"Each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes," he wrote in his year-end press release. "This has created acute difficulties for some judicial districts."

The selection of judges has become a political game. Legal interest groups have transformed the process into  jurisprudential karayoke, with nominees required and expected to mouth just the right platitudes in just the right way to win the approval of the Senate Judiciary Committee. As a result, all candidates have a tendency to look depressingly similar. All are graduates of stellar law schools. All have served clerkships to either Supreme Court justices or influential appellate court judges. They have advised governments, worked in white-shoe firms, and lectured from some of the finest lecterns in the world. They are a privileged lot by training and experience. While a few, Sonya Sotomayor and Clarence Thomas spring to mind, have known the sort of chaos that poverty brings, most are solidly middle and upper-middle class. The current court looks like a bastion of professional privilege.

President Barack Obama did nothing to deliver the change he promised in his first two appointments to the Supreme Court. Justice Sotomayor served for decades as a federal judge before ascending to the high court. Although she worked briefly as a prosecutor in Manhattan, she spent most of her career wielding a gavel. She was a safe and predictable appointment.

Elena Kagan, by contrast, was a stranger to the courtroom before her appointment. A former dean of the Harvard Law School, she seems as though she spent a professional lifetime grooming herself to be just the sort of cipher who might have a shot at getting a Supreme Court nomination. She, too, was a safe and predictable appointment.

Justice Roberts hails from the mordant pastures of a group of legal revolutionaries who set their sights on making judging political -- the Federalist Society. But for the dedication of a group of conservative radicals who plotted, cultiivated and noodled the transformation of judicial nominations into ideological contests, there would be no Antonin Scalia, Clarence Thomas, Samuel Alito or John Roberts on the high court. For the chief to call off the ideological dogs now that he is sitting atop the heap and the court is salted with four necromantic horseman sounds a little whiny.

But Roberts can walk the walk and reform if he chooses to do so. He should urge the president and the Senate to appoint a trial lawyer with actual courtroom experience representing ordinary people in disputes with the government or large corporations. Why not a public defender on the high court? Why not a plaintiff's lawyer? Why must every justice be schooled in the arts of serving power and institutional intertia?

Here's the opening paragraph of the statement Roberts should read the next time he presses the send button on his compter to spit out a press release:

"Our courts represent the last hope many Americans have for justice when their lives hang in the balance. Some people face long years of incarceration or death for crimes committed in an instant. Others see their lives undone by an accident or injury that occurred in the mere twinkling of an eye. We bid people to turn to the courts to resolve their conflicts. We say doing so is better than the resort to private acts of violence. But how are ordinary Americans to have confidence in a court system that operates as a world apart, and is staffed with a judiciary that is largely unschooled in the very sorts of conflicts taking place in the courts? We have ideologues sitting in seats that require judgment and justice, not rigid and formulaic doctrine. I urge the president and the Senate to bring us more trial lawyers, men and women whose acquaintance with sorrow and grief comes not from reading briefs in the safety of appellate chambers. Bring us justices who have seen tears in a courtroom, and on whose shoulders the forgotten and damned have leaned."

Is asking for a trial lawyer on the high court requesting too much? It appears as though the trial courts are busier than ever. At the end of the 2010 report, the chief noted that filings in the federal court increased last year. Civil filings in the trial courts increased two percent, to 282,895. The chief did not report what percentage of those cases actually went to trial: I suspect the number of cases actually tried to a verdict before a jury declined. Is an activist judiciary keeping the people from deciding cases at trial? And the number of those accused of crimes by the federal government reached an all-time high: there were 78,428 prosecutions initiated in 2010, targeting 100,366 defendants. 

Having a justice who has actually spent time in the well of a courtroom litigating cases might knock some the doctrinal silliness out of court opinions, which grow longer and longer each year. 

I know. I am a dreamer. But so are the men and women who turn to the courts for relief. They dream of justice applied without regard to person or party.


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