A bit of introspection

I know enough psychology to know that fear is often the root emotion of anger.  My posts on the sequester exhibit more than a little anger. Rage is not too strong a word.  Why am I so terrified? I tremble at the barbarians’ rejection of what I had always assumed were unquestioned verities like the sanctity and beauty of our federal judicial system.

It remains to be seen whether this old man’s terror is well-founded, but I won’t have to wait long for an answer. The answer is coming quickly like the metaphorical train in the tunnel.


9 responses

  1. the federal judiciary seldom grants claims if ineffective assisstance of counsel. your fear will never change that posture.

  2. When I first became a lawyer in 1978, there were apolitical and brilliant minds on the bench who awed me….Judges like Henry Friendly and Edward Weinfeld. But then came the Reagan era, and the increasing politicization of the system in a rightward direction. I share your concern and anger, and have dealt with its unfortunate consequences frequently in recent years when I have appeared in the SDNY and the Second Circuit.. But once the Presidents and the Senate starting appointing politicians–instead of legal minds–to the federal bench, it was inevitable that the third branch would be seen as just another funding priority in the system.

    For one example, when I was young, it seemed that no federal judge ever resigned to take another position, but truly served for life. Now, the examples are numerous of judges quitting after a few years to take up other political jobs We all know who they are. So once the federal bench was seen as just another job slot on the resume, you can’t expect the Congress to exempt it from its funding processes. I wish it were otherwise.

  3. Trish, I see a light, but it is like the head lights on the huge locomotives that pull the freight trains my brother used to take through the dark tunnels in Ohio and Pennsylvania. When they come out the other end any unfortunates on the track are all gone and the trains keep on going.


  4. Richard,

    I agree with some of what you have to say. But, the federal judiciary, from its inception, has always been at the intersection of law and politics. Despite that, our federal courts have always been and are still places where the rule of law (rather than raw politics) is venerated and nurtured most of the time. As a result, the politicization of the judiciary (that you rightly decry) does not excuse the barbarians in Congress, and their rapid (and vapid) supporters, from the grievous harm they are inflicting on the Third Branch.

    All the best.


  5. Richard, actually I think the most overt effort to put political pressure on the federal judiciary was FDR’s Court-packing plan. Of course, though, you’re referring a different, but related issue, of the qualifications of federal judges. Although this is entirely anecdotal, the District Judge in the famous Erie Railroad case was an FDR appointment who was barely literate.

    I read somewhere (but I can’t easily find any reference to back this up, so I may be wrong), but I believe that Reagan actually appointed a higher percentage of Democrats to the bench than Carter did Republicans.

    I actually think that the most significant change in the way that federal judges are appointed and confirmed (or not) was the Roe v. Wade decision. Basically every confirmation process (particularly of Supreme Court Justices) has become a stalking horse for determining whether the Justice or Judge would vote to overrule Roe if given the chance.

    The most spectacular example of this was the Bork nomination. Back as late as the 1950’s and 1960’s, Supreme Court Justices were often confirmed by a voice vote of the Senate, shortly after being nominated to the bench. As it turned out, the Bork explosion turned out to be of personal benefit to me, because it got my old boss (Kennedy) onto the Supreme Court. In the “old” days, Bork would have been confirmed without much fuss or bother. However, Bork was being nominated to replace Powell, and the thought was that with Bork there would be five votes to overrule Roe. One of the few miscalculations that Reagan made was that when Burger retired, he picked Scalia instead of Bork. He did so because he feared that this might be his last appointment to the Supreme Court, and Scalia was younger and Bork was a smoker. Then he got a bonus pick when Powell stepped down.

    If he had reversed the order, Bork would have been confirmed because it was swapping one conservative (Burger — though he did sign the majority opinion in Roe) for another. Scalia would have been the “swing” nominee, and Scalia would have survived. He had written far fewer highly controversial opinions, and also was a better witness in that he didn’t say too much.

    I have it on good authority that when Bork said in response to a friendly question from Alan Simpson (R-Wyoming) about why he wanted to be on the Supreme Court that Bork would view it as an intellectual “feast” Biden (then the ranking Democrat on the Judiciary Committee) turned to Strom Thurmond (Biden’s Republican counterpart) and said quietly “he’s finished” to which Thurmond replied: “I’m afraid you’re right.”.

    So this era is different in some ways, but not so different in others — and I’m not sure that I agree with your diagnosis.

    I will say that one of the reasons I love diversity jurisdiction is that I know that I’m much less likely to get “homered” than I am in state courts. I know that most state court judges do their best, but they are generally terribly under-resourced. In Douglas County, Nebraska (Omaha — apologies if you’re from around here) they have two attorneys to help a couple of dozen trial judges with legal research. In federal court, every judge has multiple clerks of his or her own. The state court judges also often face direct political pressure in either having to actually run for election or stand for retention. If the third branch becomes under-resourced like far too many state courts, we will all suffer. Best, Pat.

  6. While I agree that the sequester is shameful, I lack the confidence in federal courts as opposed to state courts. I practiced in federal court for many years. Unfortunately, I believe the federal courts have little respect for regular folk and disregard the Seventh Amendment, which by all accounts should have equal veneration as the other amendments in the Bill of Rights. Summary judgment clears dockets. Court conducted voir dire speeds along what few civil trials there are. I know this view may not be popular on this blog and I could be flogged (metaphorically) for this, but perhaps the federal judiciary has lost touch with the woes of commonfolk.

  7. Lynne,

    Thanks for your comments. While I share a different view, as you might imagine, I appreciate your experiences and I appreciate your willingness to write about them. You are not the first person to express the view on this blog that the federal courts are insufficiently sensitive to the Seventh Amendment jury trial right. In fact, that is a common complaint with the plaintiffs’ lawyers who comment.

    Perhaps you are right. In any event, I am glad you wrote.

    All the best.


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