The  Deseret Morning News interviewed Paul Cassell, a District Court judge in Utah who, at age 42 and after a mere 5 1/2 years on the bench, resigned in frustration.  Judge Cassell, you may recall, was the first to revisit the unconstitutionality of the sentencing guidelines in Croxford in 2004, a precursor to Booker.  He expressed strong opposition to mandatory minimums.  Despite his tender years and a lifetime appointment, he was precisely the sort of judge we pray for, balanced and deeply concerned about the law being captive to politics.

“There’s a kind of ratchet effect where the Republicans will say, ‘We want a five-year mandatory minimum sentence,’ and Democrats will say, ‘We’ll up you, we want a 10-year mandatory minimum sentence,’ and you have people ratcheting up sentences to the point where any reasonable observer would think we’ve gone too high, but there’s no political incentive to undo the mischief.”

Paul Cassell found himself constrained by his view of the role of a district court judge and his sense of justice and fairness.  Even within this role, he pushed the envelope, challenging the government’s prosecution of an illegal immigrant for “identity theft” when he used a social security number to get a job, like millions of others, but was prosecuted as if it were to steal money. 

“One of the frustrations about being a trial court judge is that you never set broad principles of law; of course, that’s reserved for the appellate courts. … When I was there for 5 1/2 years, I began to think that maybe I would have more effect in moving the law in a way that I think is desirable by doing appellate litigation.”

What is fascinating is that there are judges, even on the federal bench, who view their life as having a greater purpose.  It isn’t about the prestige, or the money they aren’t earning, but about the good they are doing.  But if the sense is that the position of a United States District Court Judge is inadequate to have a meaningful positive impact, then what our society is in deeper trouble than we think.

I came across Paul Cassell’s interview on Volokh, where Orin Kerr, a George Washington Law School criminal law professor, makes clear in the comments his disagreement with Judge Cassell’s “activist” leanings.  The view over there is that judges are grocery clerks, charged with making sure that everything on their list is checked off before imposing the sentence found on the guidelines grid.  From this perspective, Paul Cassell was indeed an activist, and perhaps a bad judge.  There is no room in this vision of the judiciary for the exercise of discretion to the ends of justice. 

But Orin includes a fascinating paragraph that struck me as significant:

Incidentally, Cassell is one of five federal judges with superlative academic credentials who recently resigned or announced plans to resign either after only a short period of service or when still relatively young. I believe Cassell is now 47, and he resigned in 2007 after 5 and 1/2 years of service. The other four are Mark Filip (41, served for 3 years, now a nominee to become Deputy AG), David Levi (resigned in 2006 at the age of 55 after 17 years on the bench to become Dean of Duke), Michael Luttig (resigned in 2006 at 51 after 15 years on the bench to become GC of Boeing), and Michael Chertoff (resigned in 2005 after 2 years at age 53 to become Secretary of Homeland Security).

Becoming a federal judge used to be considered the crowning glory at the end of a significant legal career.  One did not assume the bench until one had accumulated a lifetime of legal experience.  There have been a number of judges within the districts of the Second Circuit who sat for brief periods, such as Kenneth Conboy, Abraham Sofaer and Louis Freeh, who also fit within the group.  Conboy, of course, left to take a partnership with Latham & Watkins, complaining he couldn’t live on a federal judges’ salary.  Sofaer and Freeh went to Washington to serve in the executive branch.

For many years, the change in the nature of judicial appointees has been cause for concern.  Rather than view the position as the end of a legal career, judgeships have become a parallel track for lawyers who are young, sometimes bringing very shallow experience to the bench, and with greater aspirations for the future.  This, in my view, defeats the purpose of life tenure and the intentions of the founding fathers to create a branch of government that need not appease the others.

This is not to say that judges whose entire careers were spent within a United States Attorney’s office make bad judges.  Consider EDNY Judge John Gleeson, who has been extraordinary in his refusal to bow to the sacred cows of Washington and has demonstrated a remarkable sense of justice. 

But contrast this with Jack Weinstein, an old-timer who has shown how a federal judge can adjudicate without fear of reprisal.  Reversal, perhaps, but not reprisal.  And then there’s SDNY Judge Harold Baer, who was threatened with excommunication for suppressing evidence because he considered the views held by Hispanics in New York City and, after the firestorm, reversed himself to avoid potential impeachment.

When young judges take the bench, with dreams of using it as a jumping off point for something bigger, they forfeit the ability to use the power of a life appointment because it will harm their chances of higher office or a pot of gold at the end.  Whatever their aim, being a federal district court judge doesn’t appear to be nearly enough to satisfy them.  This presents a terrible problem for those of us who depend on their independence and the exercise of their authority without fear of how it will affect the next step of their career.

Whether Judge Cassell’s decision to leave the bench for academia and appellate advocacy will prove to be the right move, considering what many believe to be the misguided view that he can have greater freedom and impact on the outside than he did on the inside, I hope he finds what he’s searching for.  He was one of the good ones, and could have been one of the great ones if he stuck to his bench.

There is one additional irony in this discussion.  My view of this problem is from the trenches, where lawyers try to save lives one at a time.  Orin Kerr’s view is from the tower, looking down at the federal judiciary and their adherence to their role in the grand Federalist scheme.  If Orin is right, then the best we can hope for are district court judges with their grocery lists, as their roles are not to do justice in each individual case but to mechanically apply the decisions of Congress as dictated by the circuits and Supreme Court.  If they do their jobs right, per Orin, they will be nothing more than cogs in the wheels of the law, a very unsatisfying image.

For those of us who walk into courtrooms to do battle for real people in real cases, each “cog” means the world to us.  We desperately hope that every federal judge brings a sense of justice and fairness to each case, and not merely a grocery list.  If it is not their job to hear what we have to say, to consider the merit and propriety of our positions and arguments and to make decisions that will affect people’s lives forever, then we are wasting our time in court.  It hurts all of us when we lose a judge like Paul Cassell, because he brought this to the bench, and he’s wrong about being able to make an impact on the inside.  If only he had thought about it from the point of view of being their until the end of his legal career, he would have been empowered to be exactly the sort of judge he wanted to be.  And we would have wanted him to be.