At Slate, Cato’s Clark Neily calls for more judges with criminal defense experience, going so far as to call for a moratorium on judicial appointments from the ranks of prosecutors.
Fortunately, the solution is simple: a temporary moratorium on nominating former prosecutors to the bench and a strong preference for lawyers with substantial experience representing individuals against the government in criminal and civil cases. If that proposal seems extreme, consider the image of a federal judiciary in which former public defenders outnumbered prosecutors 4 to 1. Notwithstanding the transformative effect that would have on our deeply dysfunctional criminal justice system, not to mention the Bill of Rights, it’s probably not a good idea. But neither is it wise to continue doing nothing while the imbalance runs the other way.
Given the climate these days, few social justice warriors will disagree, and some might even split their donations between the ACLU and Cato. Not that it will happen, because the idea isn’t simple, but simplistic, and there are a host of reasons why it will not do what simple minds believe it will do.
But this is an age of believing in simple solutions, as surely our intransigent societal problems could all be solved if only someone thought of these simple solutions at some point in the history of human existence before. It’s not as if the $15 minimum wage has consequences either.
There is another assumption, however, that is implicit in such easy answers to complex problems about how to “fix” the law. Remember the debate between Trump and Clinton, where both “promised” to appoint Supreme Court justices who would rule their divergent ways when it came to abortion? The pitch wasn’t that they would pick neutral judges, or smart judges, or fair judges. Rather, they made clear they would nominate biased judges who would definitely be as prejudiced toward one view or another as possible. Yay?
The problem for Dems is Trump won, and so he got to pick his team. As it turned out, his selections aren’t nearly as horrifying as some adamantly believe they are, though few on the left will ever consider the possibility that despite the fact that Trump may have had one purpose in mind, judges can’t help themselves but try to be fair within the confines of their judicial philosophy. Remember, Nino Scalia and Crawford?
2. The premise of the article appears to be that it is ok for the Supreme Court to be controlled by liberals, but not ok for it to be controlled by conservatives. What justifies that?
— Michael Rappaport (@MichaelRapp) October 14, 2019
One can fairly argue that both teams are playing the same game, of packing the court with justices in whom they repose trust to rule the way they would prefer. But then, that’s part of the nature of having the president nominate judges, whether inferior, superior or supreme.
The difference is that in the past, the argument was that judges whose writings, career, rulings and speeches reflected a fairly clear perspective, or more accurately bias, weren’t really biased and would make their rulings, whether balls and strikes or for the betterment of society as they saw it, as fair and neutral jurists. They were sold to the public as good judges, not partisan hacks or reliable votes.
And indeed, as Chief Justice Earl Warren proved, one can never be 100% certain about how reliable a judge will be.
We’re past this now, apparently, as the solution to a conservative court is pick a slate of judges who can openly pass a litmus test, check the right boxes, and will provide comfort in knowing that without regard to the issue, the law, the facts involved or who is right or wrong, they will vote the way their team demands.
Demand Justice, a group founded to counteract the conservative wing’s decades-long advantage over liberals in judicial fights, will release a list of 32 suggested Supreme Court nominees for any future Democratic president as they ramp up their push for the 2020 contenders to do the same.
The slate of potential high court picks includes current and former members of Congress, top litigators battling the Trump administration’s initiatives in court, professors at the nation’s top law schools and public defenders. Eight are sitting judges. They have established track records in progressive causes that Demand Justice hopes will energize the liberal base.
What, you ask, could justify such an openly cynical approach to judicial selection?
And the move replicates Trump’s unusual decision in May 2016, when he had become the presumptive Republican presidential nominee, to release a list of his potential Supreme Court picks in an attempt to assuage a base skeptical about his conservative bona fides.
This is an interesting metric, if Trump did it, then we can too, because why be any better than Trump?
“While Democrats play by the rules, Republicans are shredding the rule book, and the result is a partisan Supreme Court that works for corporations and the Republican Party and against everyone else,” said Christopher Kang, the group’s chief counsel who was also the top lawyer working on judicial nominations in the Obama White House.
Kang added: “If we want to restore balance to our courts, we need to stop shying away from the fight for them and instead give progressives something to fight for: judges who have been bold, progressive champions who have been on the front lines advancing the law for our values.”
Balance is a good argument, if this was a legislature rather than a court. Courts shouldn’t be “balanced,” but neutral. Judges shouldn’t be nominated based on their championing causes, but on their capacity to fairly hear and consider the cases before them. If not, it kinda makes cert a rather pointless effort.
Despite the certainty of hysterical pundits that Justices Gorsuch and Kavanaugh are the spawns of Satan, both were respected circuit judges before we were informed they were partisan hacks. What better approach to persuading the Supreme Court could there be other than denigrating and alienating two votes for the sake of perpetuating outrage? But they may well prove bigger than their haters and serve as fairly as they can.
That may not be the case anymore, and there appears to be no shame in openly framing judicial appointments as reliable advocates for the cause. Hopefully, the nominees will prove bigger than those voices seeking simple solutions and judges dedicated to their prejudice.