A Rare Point of Agreement: Judicial Selection Must Improve

At A Public Defender, Gideon goes on a well-deserved tear over the fact that our beloved Supreme Court Justices are busy making earth-shattering decisions about stuff they know nothing about.

The internet is a series of tubes, about....this big.

The internet is a series of tubes, about….this big.

Isn’t it just so darling that these befuddled old justices get to pretend that it’s still the Bronze Age? It’s so adorable that they decide cases involving video games, but oh no, they’re a loveable bunch of pensioners who’ve never heard of video games, so they “try out a few”.

Funny? Not so funny if you remember that these are the guys and gals shaping our freedoms for the future. It raises a point that’s been made many times and in many ways about how someone goes from mere mortal to the bench. They’re just like you or me, except their decisions can destroy lives. At best, we can only make people a little miserable.

There is probably no lawyer of a certain age who hasn’t pondered whether he could do something to help by leaving the practice of law behind and becoming a judge, especially a federal judge with life tenure.  But then, we remember that the machinery that turns human beings into federal judges is rarely able to see into the trenches.

The official bar people who sit on committees, from the one that recommends to a senator whose name to mail off to the president, to the ones that decide if you are qualified or suck, are the profession’s equivalent of Paris Hilton fans. They adore importance, as interpreted through the prism of their stultified world. Trench lawyers aren’t important. We don’t even get invited to their parties, no less make their lists.

All of this made me think of an ironic post by Kent Scheidegger at Crime and Consequences, where the rarest of things happened. I agreed with his ultimate conclusion.  His opening dig, on the other hand, not so much.

Professor Michael Yelnosky of Roger Williams U. Law has this article in the WaPo on the ABA’s judicial selection committee.  His thesis is that the committee is biased in favor of business interests, but in the process of making his case he reveals a typical academic blind spot.

Five of the six new members work for some of the country’s largest law firms and regularly represent some of this country’s biggest corporations. The sixth represents businesses defending against claims for which they have liability insurance — “insurance defense” cases. On the committee, they will join four other lawyers who work at large corporate firms, four who represent businesses in smaller law firms and one who specializes in defending lawyers sued for malpractice.

Not one of the lawyers on the committee for 2013-14 regularly represents individuals who bring lawsuits alleging they were harmed by the actions of corporations or other business entities, and not one represents individuals charged with anything other than white-collar crimes.

Okay, so there are criminal defense lawyers on the committee, and Yelnosky is all upset that they are all white-collar defense lawyers as opposed to lawyers who defend murderers, etc. (red-collar?).

Let me be absolutely clear on this point: Biglaw white collar defense lawyers are not criminal defense lawyers. They are former federal prosecutors who got gigs of dubious merit because corporations love official titles and think it gives them some inside track to  the secret government handshake that will save them millions, at a cost of billions.

Kent complains about Michael Yelnosky’s bias against prosecutors based on his accurate assessment of Biglaw types being pro-business, because, well, isn’t defending MegaCorp pretty much just like defending a poor, drugged out, borderline psychotic, mentally challenged, uneducated murderer, except for everything?

But then Kent makes an important point. What makes his point important is that it transcends the huge, and I mean huge, gap in respective world-views toward the judiciary and the selection process, which seems to please no one except the handful of Biglaw guys wearing really nice suits who get the nod.

Back to Yelnosky:

I recently  completed a study that shows that lawyers who represent business  interests have been overrepresented on this ABA standing committee for  many years. That overrepresentation is inconsistent with the special  role the ABA has in federal judicial selection. Unless the committee  becomes more representative of the profession, the ABA should not retain this privileged status.

Here is some common ground.  I  completely agree with that last sentence.  Now, there is zero chance that the ABA will  become representative of the profession in criminal law.

Yes. Me too. Some have suggested that I’m a bit harsh on the ABA, given that it’s made up of a bunch of lawyers volunteering their time to try to make the world a better place. And some are, I guess. I’ve been urged to join committees, work towards a better tomorrow, sing Kumbaya and stop being a bar association hater. A friend of mine even offered to pay my dues in one particular bar association to get me to come back on the board. Which is just slightly less interesting to me than sticking a needle in my eye. I thanked him and passed.

Something happens to otherwise decent people when they put on an Official Person hat. They talk too much. They equivocate. They fear taking principled positions or offending others. They believe that compromise is a good thing and that the concepts of right and wrong are always secondary to getting along. The lawyers who serve on ABA committees are not immune from this phenomenon.

And so Kent and I agree that the ABA doesn’t deserve to play a role in matters of quasi-governmental significance, as there is nothing representative about the Official People who hold important bar association positions.  Of course, I suspect that we would struggle to reach agreement as to what would make judicial selection committees more representative, but we will never get the chance to vehemently disagree as long as the ABA gets to pretend it speaks for the legal profession.


8 comments on “A Rare Point of Agreement: Judicial Selection Must Improve

  1. nidefatt

    It’s the catch-22 of my hatred for elected judges. The folks who get to make the decisions turn out to be no better than, and sometimes worse than, the general public. The only good thing is you avoid the election advertisements and judges generally embarrassing the entire profession on the campaign trail.

    While we’re on the subject- I don’t know who you all have in NYC deciding who runs the public defenders, but in Idaho, they just set up a committee to look into solving our problems at a state level (at the moment it’s “decided” by each county). This committee is made up of: cops and prosecutors. And the state appellate defender. Ah, committees.

      1. SHG Post author

        I’ve heard of this (or similar) before. You know, public monies funding public defenders, so there has to be careful scrutiny by, you know, the other side (a/k/a the “good guys”).

          1. nidefatt

            ha ha whoops. It’s a subcommittee of this group:

            Its membership includes representatives from the Attorney General’s office, the Idaho Senate, the Idaho House of Representatives, the Department of Correction, Idaho State Police, Department of Juvenile Corrections, Office of Drug Policy, Idaho Department of Education, Commission of Pardons and Parole, State Appellant Public Defender, Department of Health and Welfare, the administrative director of the State courts, the Idaho judiciary, the Idaho Prosecuting Attorneys Association, the Commission on Hispanic Affairs, the Idaho Sheriffs’ Association, the Idaho Chiefs of Police Association, the Idaho Association of Counties, and two at-large citizens. Director Reinke remains a member of the commission.

  2. Alex Bunin

    “Something happens to otherwise decent people when they put on an Official Person hat. They talk too much. They equivocate. They fear taking principled positions or offending others. They believe that compromise is a good thing and that the concepts of right and wrong are always secondary to getting along.”
    At least I don’t talk too much.

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