Biden’s Judiciary: A Tower of Babel
Dana Remus, President Biden’s White House counsel, has addressed a letter to Democratic senators asking for their recommendations of candidates for appointment to the 40 or so vacancies on the federal district courts. She has asked for persons “whose legal experiences have been historically under-represented on the federal bench,” including those who are “public defenders, civil rights and legal aid attorneys including those based on their race, ethnicity, national origin, gender, sexual orientation, gender identity, religion, veteran status and disability.” Maturity and long experience are not a criterion.
District judges, however—unlike appellate judges, who sit in panels and are in some measure restrained and socialized by their fellows—are equipped with the awesome power of criminal sentencing, as well as the power to enjoin statutes. They do not function as representative bodies. The Trump administration perversely sought youth in its judicial appointees. To its credit, it usually looked for academic excellence, too, but even for district judges, it overly stressed ideology.
Our contemporary senators have little interest in permanent things: enforcement of horizontal and vertical separation of powers, protection of procedural due process, and predictability in the civil law. Yet for a series of classical writers, from Aristotle to Aquinas to Montesquieu, the central function of judges was corrective justice, involving restoration of the status quo and punishment of deviations from it; distributive justice, changing society, was a matter for the legislature.
Judge Bork, beset with five days of questioning about “privacy” and abortion, escaped from the hearing room without a single question being asked about criminal procedure, criminal sentencing, or federal criminal jurisdiction.
To use today’s burning issues in assessing nominees is folly. Justice McReynolds owed his appointment to his record as an antitrust crusader; Justice Sherman Minton’s appointment was due to his consistent support of the New Deal. Their prior records did not predict McReynolds’s hostility to the welfare state or Minton’s conservatism on civil liberties issues.
Advocacy groups favor appointment of federal appellate judges with known positions on fashionable issues. State court judges know about criminal cases and family law and private practitioners know about legal costs and the private economy, but senators do not care about such things.
This is something new. Justices Holmes, Cardozo, and Brennan came from state courts; Justices Hughes, Stone, Jackson, Black, Powell, 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.
Federal judicial appointments were once 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.
An inordinate number of judicial appointees to lower courts 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, whose work involves passing on search or arrest warrants or setting bail; they become effectively part of the prosecutorial establishment in their daily associations. The work is repetitive 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. The first is political partisanship, departed from in recent times only by Gerald Ford, with the advice of Attorney General Edward Levi, 25 percent of whose District Court appointees and 10% of whose appellate court appointees were Democrats. Remus seeks the advice of only Democratic senators. Yet 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 peril is the new vogue for what is called diversity, which already has produced judicial impeachments. Judges who think of themselves as members of representative bodies are apt to be unrestrained in the exercise of their powers. But George Orwell once 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 Oxford, with long experience at the private bar, who regarded themselves as neither revolutionaries nor counter-revolutionaries and who left social reforms unobstructed. Justice Holmes once said: “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.” Although the detached 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.
It was idle to hope that President Biden would look to the state courts and to private practitioners with varied experience, and even to some Republicans, for his judicial appointments. That would have rescued the federal courts from the political mire into which they are sliding and would have helped restore government by consent of the governed. Instead, the District Courts are to be populated by young and narrowly experienced lawyers from legal aid and public defender offices and liberal advocacy groups. The institution of a federal civil action thus will resemble a game of Russian roulette. Forum-shopping and manipulation of chamber-judge designations and related-case forms will become endemic, and the tolerance that comes with age and experience becomes a positive disqualification, as does experience with the non-federal parts of the federal system. While the collegial nature of appellate courts will somewhat mitigate the impact of an influx of inexperienced and partisan judges, the full brunt of their entry will be felt in the District Courts. There we will have civil righteousness in criminal cases and plaintiff orientation in civil cases. The ideal of impartial justice is at war with identity politics; Biden’s judge-pickers are in search of professionals who Theodore Roosevelt would have stigmatized as “hyphenated Americans.” Far from putting to rest or mitigating controversies, the traditional function of the judiciary, Ms. Remus’ approach will aggravate and stimulate them.
George W. Liebmann is president of the Library Company of the Baltimore Bar and the author of numerous works on law and history, most recently America’s Political Inventors: The Lost Art of Legislation (Bloomsbury: 2019) and Vox Clamantis In Deserto: An Iconoclast Looks At Four Failed Administrations (Amazon: 2021).