Thursday, February 13th
APPOINTING FEDERAL JUDGES
week’s column discussed the election of judges and the undue influence of
A number of responses
suggested doing away with judicial elections, and following the federal path of
But is the
appointive process really better than electing judges?
Do citizens get better choices and more
competent jurists? Not the way the system works at the federal level.
of all, presidents do not really choose federal judges outside of the Supreme
At the district court and court
of appeals levels, the president, as a general rule, defers to the choice of
the state’s U.S. senators.
president is a democrat, the democratic senator in the home state of the
proposed appointee makes the recommendation.
So to qualify in most states as a federal judge, it’s not what you know but
whom you know.
are no better examples of rank political persuasions over judicial choices than
right here in my home state of Louisiana.
As quoted in last week’s column, Huey Long said it best: “I’m all for
appointin’ judges as long as I can do the appointin.”
Cronyism has been the deciding factor in a
number of federal appointees to the bench.
the court of appeals level, incompetent judges have sparked a wave of concern
Because the U. S. Supreme
Court is hearing fewer cases as each year goes by, the federal court of appeals
is the last vestige of hope for any effort to overturn a lower court
Out of more than 10,000
appeals filed last year at the nation’s highest court, only 65 were even
The action is at the court
of appeals level.
And hands down, the worst
such court in the nation sits right there in New Orleans.
If you have any doubt of this, google the U.S. Fifth Circuit,
and you’ll see these headlines pop up:
Fifth Circuit Covers
Up Serious Judicial Misconduct
Another Conflict of
Interest Uncovered on the Fifth Circuit
Judicial Diva Gone
Wild? Chief Judge Tells Fellow Judge to
Chief Judge Attacks
Judge Clement Makes
Friends with Big Oil
Pattern of Misconduct
Demands Full Investigation of Fifth Circuit Judge
These are just some of the most recent
headlines. Similar conflicts and
personal vendettas have been going on at the Fifth Circuit Court for years. The
Fifth Circuit regularly leads all appeals courts throughout the country in its
decisions being over turned by the U.S. Supreme Court. In an exposé of
the Fifth Circuit’s recent rulings, the Times Picayune quoted both Justices on
the Supreme Court as well as prominent law professors who regularly lambasted
verdicts handed down in New Orleans. University of Houston law professor
David Dow said it seems clear that the Supreme Court “has lost confidence in
the Fifth Circuit’s handling of capital cases.” And retired Justice
Sandra Day O’Conner was equally blunt in criticizing the Fifth Circuit saying
it was “paying lip service to principles of jurisprudence, and that often the
Fifth’s reasoning “has no foundation in the decisions of this court.”
It’s a shame for
those who have to deal with the Fifth Circuit that its standing is so soiled,
and that the reputation of some of its members has degenerated to the point of
such serious criticism. During the civil rights era, Louisiana federal
judges like John Minor Wisdom, J. Skelly Wright and Albert Tate were held in
high regard nationally. Their work was admired and quoted in the nation’s
best law schools. But with such a mediocre judicial stature on the Fifth
Circuit today, Louisiana won’t be in the running for one of its own to move up
to the nation’s highest court.
watchers have a name for federal judges who lack the scholarship, the
temperament, the learning, and who are simply in the wrong occupation.
They are called “gray mice.” It seems pretty obvious that the Fifth circuit
Court of Appeals is full of such critters. Unfortunately, there is not
much, short of impeachment, that the disciplinary system can do about
them. But the court’s continuing incompetence places one more stain on
the reputation of Louisiana.
Federal judges are the only
public officials in America who hold their positions for life. No matter how
incompetent their actions are on the bench, or how outrageous their decisions,
they are, for all practical purposes, immune from any review of what they do.
Their power comes from Article III of the United States Constitution, which
gives all federal judges lifetime appointments. Removal only happens through an
elaborate impeachment process, in which the House of Representatives brings the
charges and the Senate conducts the trial of the judge.
As Judge Burton Katz wrote in
his criticism of lifetime appointments: “In our 200 plus years as a nation,
only a few federal judges have been formally impeached. The impeachment process
itself, because it is unwieldy, divisive, and time consuming, is rarely
invoked. Hence, federal judges are, frankly speaking, judges for life. No one
can touch them. They are derisively called Article III Judges because their
behavior is frequently autocratic, capricious and grandiose. Horror stories
abound from the darkened chambers of the federal courts. When judges become
lifetime appointees, it seems that at times they think they are in lockstep
This stinging criticism
certainly does not apply to a number of hard working and well-meaning judges
within the federal system. But the Fifth
Circuit out of New Orleans has set itself up as the poster group for how not to
pick federal judges. There needs to be a
“While we should always retain a
high level of respect for the judiciary in principle, we shouldn’t be afraid to
treat individual occupants of the office with the contempt and scorn they
deserve when they issue bad rulings.”
Jim Brown’s syndicated column
appears each week in numerous newspapers throughout the nation and on websites
worldwide. You can read all his past columns and see continuing updates
at http://www.jimbrownusa.com. You can also hear Jim’s
nationally syndicated radio show each Sunday morning from 9 am till 11:00 am,
central time, on the Genesis Radio Network, with a live stream at http://www.jimbrownusa.com.