The inception of the Trump administration, at a time when there is a Supreme Court vacancy and more than a hundred vacancies on the lower federal courts, presages unedifying controversies about nominees’ attitudes toward such allegedly burning issues as abortion rights and ‘gay’ rights. Our contemporary senators and editors are equipped with less and less historical perspective and have little interest in the permanent functions of the federal judiciary: the enforcement of the horizontal and vertical separation of powers, the protection of procedural due process and freedom from fear, especially for political actors, and the maintenance of predictability in the civil law necessary to a functioning economy. Yet for a series of classical writers from Aristotle and Aquinas to Montesquieu, corrective justice involving restoration of the status quo and punishment of deviations from it was the central function of judges; distributive justice producing changes in society was a matter for the ruler in authoritarian states and the legislature in democratic ones.
Thus it was that the ill-fated Judge Robert Bork, beset with five days of questioning about “privacy” and abortion, escaped from the hearing room without a single question being asked about his views on criminal procedure, criminal sentencing or federal criminal jurisdiction.
It is fair to predict that the burning issues of today will not be burning issues twenty years hence, and to use them as guides in assessing nominees is folly. Justice McReynolds owed his appointment by President Wilson to his record as an antitrust crusader; Justice Sherman Minton’s appointment by President Truman was due to his consistent support of the New Deal. Their prior records did not predict McReynolds’ hostility to the welfare state or Minton’s conservatism on civil rights and free speech issues in the McCarthy era.
There is reason for grave concern about judicial selection at both the Supreme Court and lower court levels, and this concern owes nothing to the election of Donald Trump.
A pattern has developed in recent administrations of both parties. The road to the higher federal judiciary is now a well-trodden one. It begins with the support of a well known ‘conservative’ or ‘liberal’ law professor; proceeds to the chambers of a federal appellate ‘feeder’ judge of the same political persuasion, and thence to a Supreme Court clerkship with a like-minded justice. Thereafter, the anointed or indoctrinated person may bide his or her time in one of several approved positions: the White House Counsel’s office, the office of the Solicitor General, or the Office of Legal Counsel, if his party is in power; or in a large Washington law firm, congressional committee staff, advocacy group or East Coast law faculty if it is not. As Paul Dewitt Carrington has noted, such careers do not foster “intellectual modesty and self-restraint. . . Especially so if they have after graduation led sheltered careers as law clerks to judges and justices and other occupants of high public offices.”
Two courses of action are fatal to today’s high court aspirant. He must not heed Justice Brandeis’ admonition to “go back to the States” and he must not express reservations about the power of the federal executive. The umpire in federal-state disputes and those between Congress and the President is chosen by one of the contestants. Our federal judges thus do not heed the admonition of Jefferson’s First Inaugural Address: “The support of the State governments in all their rights as the most competent administration for our domestic concerns and the surest bulwark against anti-republican tendencies.” The late Professor Philip Kurland, the most articulate ‘conservative’ law professor of his time, pursued the suicidal course of becoming counsel to Sam Ervin’s Senate Committee on Separation of Powers. By contrast, support for executive power in a terrorism case was a great help to the aspirations of Justice Roberts and similar support in a law review article neutralized “neo-conservative” fear about Justice Kagan.
Advocacy groups of left and right favor appointment of sitting federal appellate judges, whose positions on today’s fashionable issues are well known. State court judges have knowledge about street-level criminal cases and family law, and private practitioners have knowledge about legal costs and the private economy, but senators and newspaper editors do not care about such things.
The focus on federal appellate judging as a prerequisite for the Supreme Court is something new. The more significant justices in the history of the modern court came from elsewhere: Justices Holmes, Cardozo and Brennan from state courts; Justices Hughes, Stone, Jackson, Black, and Rehnquist from political offices; Justices Brandeis and Powell from private practice; Justice Frankfurter from the legal academy. The second Justice Harlan was appointed from the federal appellate bench, but he had served there for barely a year.
The practice of promotion from the federal courts is not only new, but pernicious. Federal judicial appointments were once thought of as terminal appointments, not steps on a career ladder. Trimming for office is sometimes quite visible. Judge Bork was accused of it, at least in his speeches, if not opinions; the judges of the District of Columbia Circuit, almost all candidates for promotion, have not been profiles in courage in terrorism cases. Indeed, they have virtually nullified the writ of habeas corpus, providing a melancholy contrast with the D.C. Circuit of the McCarthy period, which included judges like Edgerton, Fahy, Prettyman and Leventhal. Far from being preferred, promotion from the D.C. Circuit should be discountenanced.
What of the lower courts? Similar tendencies are visible there. An inordinate number of judicial appointees have been either U. S. Attorneys or federal magistrates; one study revealed that 175 out of President Obama’s 300 appointments to the District Courts had these backgrounds, 49 of them as magistrates. The larger part of the work of federal magistrates involves passing on ex parte applications for search or arrest warrants or setting bail; they become effectively part of the prosecutorial establishment in their daily associations. The work is repetitive and not inherently fascinating and those who embark upon it at an early age do so with future promotion in mind. Unfortunately, they become walled off from the preoccupations of the citizenry at large.
Two other factors poison the selection process for lower courts. The first is political partisanship. Winston Churchill in his address to the Italian people in 1944 enunciated seven “simple practical tests” by which freedom could be known in the modern world, the third of which was: “Are the courts of justice free from violence by the Executive and from threats of mob violence, and free of all association with particular political parties?” A second is the new vogue for ‘diversity’ and identity politics in judicial appointments, which already has produced more than the usual number of judicial impeachments.
Judges who think of themselves as members of representative bodies are apt to be unrestrained in the exercise of their powers. But during the Second World War, when it was thought desirable to articulate what was important, George Orwell declared: “The hanging judge, that evil old man in scarlet robe and horsehair wig, whom nothing short of dynamite will ever teach what century he is living in but who will at any rate interpret the law according to the books and will in no circumstances take a money bribe, is one of the symbolic figures of England.” The Attlee Government’s judicial appointees were almost all products of Eton and/or Oxford, with long experience at the private bar who regarded themselves as neither revolutionaries nor counter-revolutionaries and who left social reforms unobstructed.
Asked by President Taft whether Massachusetts judicial appointments had too Brahmin a caste, Justice Holmes replied: “So far as I have known, in the state courts at least, there has been too little rather than too much [Back Bay in appointments]. Men to whom all ideas and all books come easy rarely are found outside that class, so far as I have seen.” Although Holmes is remembered as an apostle of majority rule, and tolerance of controversial speech and legislation, people forget that he also wrote the first opinion, Moore v. Dempsey, applying the Bill of Rights to state criminal procedure.
Let us hope that President Trump looks to the state courts and to private practitioners with varied experience, and even to some Democrats, for his judicial appointments. In doing so, he will rescue the federal courts from the political mire into which they are sliding, and will help restore government by consent of the governed.
George W. Liebmann, a Baltimore lawyer and participant in several rounds of reapportionment litigation, is the author of Fifty Years of Reapportionment.