At one time a large percentage of federal judges had served in legislative bodies prior to their appointment to the bench. Today, however, former legislators are a rare exception in the ranks of the federal judiciary. This article suggests that this state of affairs has been brought about to a large extent by the view that selecting judges according to merit is somehow incompatible with selecting “politicians,” that is, legislators. This is unfortunate, because people with legislative experience can bring a number of useful attitudes and experiences to the federal bench.
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References
1.
1. Harold Chaseet al., Biographical Dictionary of the Federal Judiciary (Detroit: Gale Research, 1976), p. xvii, table 5 (hereafter cited as Biographical Dictionary). Studies typically provide full data on federal—but not state—legislative experience. Data do show that few judges were state legislators at the time of appointment, 8.3 percent for 1789-1828, for example (ibid., pp. xx-xxi, tables 7 and 8). Those who had served would likely have proceeded to other occupations, such as federal legislator or private practice, by the time of their elevation to the federal bench. We do not know how many private practitioners appointed to the bench could point to some state legislative experience earlier in their careers.
2.
In Kermit L. Hall, “240 Men: The Ante-bellum Lower Federal Judiciary, 1829-1861,”Vanderbilt Law Review, 29:1089-1129 (Oct. 1976), p. 1109, table 14, we see that fully 49 percent of district judges had served in legislative bodies at either the state or federal level, or both.
3.
3. Biographical Dictionary, p. xvii, table 5.
4.
4. Ibid.
5.
for discussion of the rise to prominence of the corporate bar, see Biographical Dictionary, pp. 155-163.
6.
Scanning the biographical entries in Judicial Conference of the United States, Judges of the United States (Washington, DC: Government Printing Office, 1978) reveals that the figure for 1972-78 is 2 percent.
7.
7. Pub. L. No. 95-486, 92 Stat. 1629, codified at 5 U.S.C. § 5108(c)(3), 28 U.S.C. §§44, 133, 1337 (Supp. IV 1980).
8.
8. See Nelson W. Polsby, “The Institutionalization of the U.S. House of Representatives,”American Political Science Review, 62:144 (Mar. 1968).
9.
John R. Schmidhauser , Judges and Justices: The Federal Appellate Judiciary (Boston: Little, Brown, 1979), pp. 28-33 (hereafter cited as Judges and Justices). Perhaps the high point of that influence was reached in 1969 when the Nixon administration announced that it intended to grant the ABA veto power over all judicial nominations except those for the Supreme Court. Ibid., p. 30.
10.
10. See Larry Berkson, Susan Carbon, and Alan Neff, A Study of the U.S. Circuit Judge Nominating Commission (Chicago: American Judicature Society, 1979) (hereafter cited as Nominating Commission).
11.
See also Richard A. Watson and Rondal G. Downing, The Politics of the Bench and Bar (New York: John Wiley, 1969), esp. pp. 331-332.
12.
12. Berksonet al., Nominating Commission, p. 43, concluded that President Carter's efforts “may simply represent a form of merit selection of Democrats, by Democrats.”
13.
13. To the extent that the ABA Committee has a voice in the judicial selection process, one observer has concluded that the result is a “house-sized bias in favor of the corporate trial lawyer.”Federal Judges, p. 142.
14.
Judges and Justices, pp. 84-85, table 313. Many of those appointees became judges in the first place because of their experience as government attorneys.
15.
15. If one really wishes to select judges without regard to political considerations, then perhaps the universities, as the nearest thing to a secular cloister in our society, are the most fruitful place to look. The few law professors who have been appointed have served with great distinction. One need mention only justices Stone and Frankfurter. But law professors may not be ideal candidates if one is concerned about overloading the judiciary with people who lack the common touch and have not been required to test their views in the crucible of elective politics. And I am only half joking when I say that anyone who has endured what is euphemistically termed the “give and take” in American law school classrooms may have some doubt about whether law professors possess in sufficient quantity a necessary characteristic of a good judge: mercy.
16.
16. I. Kaufman, “An Open Letter to President Reagan on Judge Picking,”ABA Journal, 67: 443 (Apr. 1981).
17.
17. Judging is an activity for which no set of prior experiences prepares one completely; one learns to be a judge largely through “on-the-job training.” On this point, I share the views of Judge Paul Harkey, in “Judicial Education and Selection,”Judges Journal19:29 (Winter 1980).
18.
18. Direct accountability to the electorate is of course a factor in some executive offices as well. But the proportion of elected to appointed officials in the executive branch is very small.
19.
19. I do not mean to imply that the legislative process can be understood only by legislators. A private practitioner, specializing in tax law, for example, or based in Washington, D.C., can develop considerable expertise in dealing with statutes. The same goes for people who must apply the statutory mandate of regulatory agencies. But the legislator is at the very source of the legislative fiat.
20.
20. This result was obtained by searching the LEXIS computer data bank for the relevant years.
21.
21. Act of 27 July 1868, ch. 249, 15 Stat. 223, codified at 22 U.S.C. § 1732 (1976).
22.
22. Alexis de Tocqueville, Democracy in America (New York: Harper & Row, 1966), p. 93.
23.
23. Perhaps the most sophisticated exposition of this view is in a 1913 article neglected outside of jurisprudence courses; see Wesley Newcomb Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning,”Yale Law Journal, 23:16 (Nov. 1913). Extreme individualism underlies Hohfeld's work, but his name has attached ex negativo to the new kind of legal relationships that find expression in the class action device: Class plaintiffs, precisely because they do not assert their rights as individuals vis-à-vis another individual, have come to be called “non-Hohfeldian” plaintiffs.
24.
24. The private-dispute version of the proper business of American courts was probably never accurate; one need only consider, for example, Marbury v. Madison, 5 U.S. 137 (1803); Dred Scott v. Sandford, 60 U.S. 393 (1857); Lochner v. New York, 198 U.S. 25 (1905).
25.
25. Frank M. Johnson, “In Defense of Judicial Activism,”Emory Law Journal, 28: 901, 906-907 (Fall 1979).
26.
26. Edward H. Levi, “The Business of Courts: A Summary and a Sense of Perspective,” in The Pound Conference: Perspectives on Justice in the Future, eds. A. Leo Levin and Russell R. Wheeler (St. Paul, MN: West, 1979), pp. 269-279 (hereafter cited as “The Business of Courts”).
27.
A thorough study of the judges' changing role is Abram Chayes, “The Role of the Judge in Public Law Litigation,”Harvard Law Review, 89 (May 1976), p. 1281.
28.
28. The reasons vary. Frequently, the legislature determines that a statute can be most effective if considerable leeway is permitted for further development by the courts, for example, by class action litigation. But sometimes a legislature simply passes the buck to the courts, either because it cannot reach agreement on certain aspects of an enactment or because it does not wish to antagonize someone. See E. Levi, “The Business of the Courts,” pp. 277-278.
29.
29. 410 U.S. 113 (1973).
30.
30. In other instances, the Court accurately predicted that the time was ripe for a development that the legislature was reluctant to bring about. Eisenstadt v. Baird, 405 U.S. 438 (1972) held that unmarried individuals could not be denied access to contraceptives. (In 1965, Griswold v. Connecticut, 381 U.S. 479, the Court had announced such a right for married couples.) In stark contrast to Roe v. Wade, the popular opposition to Eisenstadt was not substantial.
31.
31. Finley Peter Dunne, Mr. Dooley at His Best (New York: Charles Scribner, 1938), p. 77.
