Having hung up her robe, Shira Scheindlin is now free to speak her mind, and so she does in a New York Times op-ed.  For those who may not know why this matters, getting your case wheeled out to Judge Scheindlin was like winning the criminal defense lottery in the Southern District of New York.

It didn’t guarantee a win by any stretch, but you were pretty well assured that she would listen to your arguments and give them serious consideration. That’s the best we could hope for. And unlike other judges, who would work hard to find a reason, good or otherwise, to deny whatever it was you sought, sometimes Judge Scheindlin said yes. For those of you who only see the system from afar, you have no idea how rare that is. Law sounds great on paper, but it’s brutal and ugly in the trenches. It’s that occasional “motion granted” that we live for.

Judge Scheindlin was unfairly smeared, and excoriated by her own branch, for her ruling in the Floyd and Ligon cases, where she held the NYPD’s “stop and frisk” program unconstitutional.  It was one of Commissioner Ray Kelly’s best tricks, name the tactic after something that’s perfectly lawful, but perform it in a flagrantly unlawful way. It confuses the crap out of the public and most politicians, and was easily wrapped up in a lie that soothed white New Yorkers at the expense of blacks and Hispanics.

Throughout the litigation and its bizarre appellate aftermath, Judge Scheindlin was constrained to bite her tongue. She was a judge. She didn’t get to write op-eds, take to the airwaves, to explain to an ignorant public why their elected officials were totally full of shit, lying to them, deceiving them.  

She tried to subtly make her points in her decision, but it’s hard to counter politicians screaming lies with cautious words requiring a certain depth of understanding. Neither New Yorkers nor pundits were up to the task of understanding. And those who did understand, only too well, didn’t have big enough soapboxes, or official-enough titles, to do the trick.

Now that Judge Scheindlin is unmuzzled, she makes a point that needs making. It’s not a political point, as Judge Richard Kopf offered a similar point as well. While most people obsess over the Senate’s refusal to consider the nomination of Merrick Garland to the Supreme Court, because it needs another staunchly pro-prosecution judge to fill its complement, there are tons of empty benches in the trial courtrooms of America that nobody cares too much about, because the Senate similarly refuses to confirm district court nominations.

Such obstructionism has become an everyday occurrence. Just last week, Senate Republicans refused to vote on 11 federal district court nominees whom the Judiciary Committee had already approved — even those who were supported by Republicans in their home states. During President George W. Bush’s last two years in office, the Democratic-controlled Senate confirmed about 57 district court judges. Since Republicans took power in 2014, the Senate has confirmed only 15 of President Obama’s trial court nominees.

This is an even bigger problem than Judge Garland’s stalled nomination. Trial court judges do the bulk of the work in the federal court system: Last year nearly 375,000 new cases were filed, while the Supreme Court justices issued just under 75 opinions. And because most trial court decisions are never appealed, they become the final word in significant disputes that affect millions of Americans.

Being a federal judge is a great gig in some respects. Life tenure. Everyone laughs at your jokes, no matter how much they suck. Even cops were nice to you, provided they realized you’re a judge before they whacked you. On the other hand, the pay sucks, the work can be overwhelming and brutally boring. And on the first hand, again, you can make decisions that affect the lives of millions of people. This last bit can make it worth suffering the tedium.

Whether Judge Garland should be confirmed or not, there can be no denying that Supreme Court nominations are inherently political. So it’s no surprise that they are drawn out for ideological or partisan reasons. But district court nominations are different. Ideology is not the issue: Experience and competence are the only criteria.

And yet the Senate majority’s policy of delaying qualified district-court nominations on purely political grounds undermines public trust in the impartiality and legitimacy of the judiciary. This is especially worrisome because the public’s understanding of how justice is administered is most likely based on its access to and experience with lower court proceedings.

Judge Scheindlin is right, that district court nominations are different. They’re the working stiffs of the federal judiciary, and ideology isn’t the issue. But then, she cuts her own argument off at the knees by admonishing people to think about the Republican-controlled Senate’s refusal to confirm trial judges while noting that the Democrat-controlled Senate did its job and confirmed the judges needed to adequately staff trial courts.

Are “experience and competence” the only criteria? Should they be? The federal judiciary is largely drawn from two sources, prosecutors and Biglaw. The judges are, indeed, experienced and competent, in the sense that they’ve been around and gained respect for what they did as lawyers. But if, by experience, one considers breadth, the understanding of what it means to defend the accused, to talk to regular people, hold their hands, understand what the legal system does to crush their soul, to know what it’s like for a black teen to get tossed against a wall three times a week on his way to school by a fungible cop, who, if pressed, mutters “bulge at his waist,” which is a total lie as there was nothing in his waist in any of the 329 times he was searched.

What sort of experience and competence does it take to understand the reality on the street versus the sanitized world of bullshit in the marble-halled, wood-paneled courtrooms, where people speak in hushed tones, moderated language, and engage in a carefully choreographed dance to try to make their point without offending the officious decorum demanded by the stern-faced person in a black robe?

Shira Scheindlin had that experience and competence. Even though she’s now unmuzzled, she knows better than to tell the whole truth because the public can’t take the truth. The truth is that ideology does matter, because we’re a few quarts low on federal judges, and the ones we have never met an actual, living, breathing minority defendant up close and personal.

But there’s one final level of truth that no one wants to hear: Merrick Garland isn’t going to make it any better, because he loves the prosecution and doesn’t give a damn about the accused. And the Democrats have nominated trial judges who are just as bad, just as distant from the real world, as the Republicans, drawn from the same quarters. At most, the difference is between bad and worse. Kinda like the election we’re facing.