Gavel Gamut
By Jim Redwine
THE PIPELINE
Antonin Scalia served on the United States Supreme Court from 1986 to 2016. He was nominated by President Ronald Reagan who left office in January 1989. Scalia was confirmed by the Senate for a lifetime appointment. Justice Scalia’s decisions were often characterized as hostile to liberal interests and supportive of conservative views. When Scalia’s friend, Ruth Bader Ginsburg, who was nominated by President William Clinton in 1993, leaves the court, she will be remembered as hostile to conservative causes and supportive of liberal interests.
Neither Scalia nor Ginsburg nor any other federal judge was ever subject to a democratic election or ever subject to voter review for their performance in office. No one doubts the conservative political views of Reagan and the liberal political views of Clinton were at the forefront of their reasons for choosing particular federal judges. Yet, when the politicians who chose Scalia, Ginsburg and others left office, the legacy of their political choices remained.
There is nothing wrong with judges having political views, who doesn’t? In fact, would we want anyone in any office who was unaware or uninformed? The issue is not what are a judicial candidate’s political or social views. The issues are who gets to select the judges and how can judges be removed when their decisions are based on their personal views instead of upon the law and the evidence of the case in front of them?
These issues are not restricted to federal judges. Many state judges are selected by systems that rely on small groups to the exclusion of the general public. While many of these systems ostensibly subject these unelected judges to public retention votes, in practice, once selected, the judge will be in office as long as he or she wishes.
It is important to note unelected judges are no worse or better than elected judges. We get our judges from the same pool we get our cowboys, plumbers and clergymen. Judges are humans. Plato’s dream of a government by philosopher kings was just that, a dream. In the real world we must make do with what we have, keeping in mind our overarching goal of democracy.
America’s democracy is preserved by having three equal branches of government. This basic framework was devised from an analysis of the ideas of John Locke (1632-1704), Jean-Jacques Rousseau (1712-1778) and especially Montesquieu (1689-1755). The people who attended the Constitutional Convention in Philadelphia were afraid of European monarchies and unrestrained power of any kind. Our government’s duty is to restrain itself and maintain control in the public. When the power of any branch is usurped by the others, the power of the people is the ultimate loser. Public control over the Executive and Legislative Branches is maintained by electing their members and having short terms of office.
Some form of these elements can be applied to the Judicial Branch. The pipeline through which we get judges to decide our cases has openings at both ends: (1) the pool they come from; and (2) how or why they leave the Bench. We can work with our existing system and, perhaps, make it better soon without the need for more elemental changes that will require more time.
I suggest we start with the front end of the pipeline, that is, the pool of people from whom we elect (or select) our judges. If we look to other areas, neurosurgeons or electricians, for example, we define the pool of available workers by setting forth credentials they must have to be considered. Judges should probably go through several levels of preparation before they can be considered for the job. Now about all that is required is the graduation from law school and the passing of a Bar Examination and maybe friendship with a senator. We might want more.
Politics can be removed from the creation of the pool of people who might become judges. While the potential judges will still be subject to their personal biases, we can, at least, have a better chance to find judges who are attuned to the job of judging as opposed to just anyone with a law degree.
The law schools of some countries separate those who wish to become judges from those who wish to practice law. Such a change in America’s law school structure could happen almost immediately. In addition to a high school diploma, a college degree, the Law School Aptitude Test and background investigations as are now required, an additional year or two as a judicial intern or law clerk could be imposed. Passing a Bar Examination and a minimum number of years practicing law could follow this. Such requirements as these and others before one can stand for election or appointment as a judge would help us avoid politics as the most important consideration.
The rest of the judicial pipeline, that is, how we elect/select our judges using democratic processes and how we get rid of judges we do not want, we can discuss next week.
