Leave it to a plaintiff’s personal injury lawyer to speak the truth. Vince and I where talking right before I gave a luncheon speech to the Nebraska Association of Trial Attorneys. Since Vince is the Chairman of the Democratic Party in Nebraska, we were gossiping about who might replace Judge Bataillon, who has announced his intention to take senior status.
Near the end of the conversation, Vince said something insightful. It went roughly like this: “I hope whoever it is realizes what pain they will inflict and what pain they will observe as they sentence people.” He added, “It must do something to you.” Vince was right, and in spades.
Now, this is not a “poor me” story about federal trial judges. We are all big boys and girls with egos to match. But, let’s also be clear about something else. The candidate to replace Joe Bataillon, or any other federal judge, will be unprepared for the impact of criminal sentencing on the sentencing judge.
The federal sentencing regime is the one aspect of being a federal trial judge for which there is no comparable experience that a judicial candidate can draw upon for help. Trust me. I don’t care whether you were a prosecutor, criminal defense lawyer, civil practitioner, a judge from the state courts, or even a federal magistrate judge, when it comes to federal criminal sentencing, you’re unprepared.
The best way to think about it is to ask yourself this question: “Am I a willing judicial executioner, a person who consciously does great harm to other human beings by faithfully executing the extraordinarily harsh national criminal laws?” Those who covet a federal trial judgeship should think hard about this truth before pursuing the job.
I doubt they will. Instead, they will say to themselves, “I’m different. I am not weak. I am strong-minded.” Or, “I’m just doing what the law requires.” Or, “They did it to themselves. They deserve it.” Or, “Someone has to do it, and maybe I can improve things.” The rationalizations are endless.
But stripped of the BS that allows good people to do bad things, here is the essential truth: When sentencing people, federal trial judges literally and consciously destroy lives and most do so on a daily basis. So, I have a bit of advice for those who wish to replace Judge Bataillon. Be careful what you ask for. You have no idea what the hell you’re getting into.