Biden’s Justice: A Tower of Babel

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300 year old statue of Lady Justice who oversees the Fountain of Justice on Frankfurter Roemer Platz in Germany.

Dana Remus, President Biden’s White House attorney, has written a letter to Democratic Senators asking for her recommendations for candidates for appointment to the 40 or so open positions in the federal district courts. She asked about individuals “whose legal experience has been historically underrepresented at the Bundesbank,” including individuals who are “defenders, civil rights and legal aid advocates, including individuals based on their race, ethnicity, national origin, gender and sexual orientation.” , Gender identity, religion, veteran status and disability. “Maturity and years of experience are not a criterion.

However, unlike appeal judges, who sit on boards and are to some extent withheld and socialized by their peers, district judges are endowed with the incredible power of criminal conviction as well as the power to legislate. They do not act as representative bodies. The Trump administration was pervertedly looking for teenagers in their law enforcement officers. To its credit, it usually sought academic excellence as well, but even for district judges it overemphasized ideology.

Our senators today have little interest in lasting things: enforcement of the horizontal and vertical separation of powers, protection of procedural proceedings and predictability in civil law. For a number of classic writers, from Aristotle to Aquinas to Montesquieu, the central function of the judges was to correct justice, which included restoring the status quo and punishing deviations from it. Distributive justice that changes society was a matter for the legislature.

Judge Bork, who spent five days having questions about “privacy” and abortion, fled the hearing room without asking a single question about criminal proceedings, criminal convictions or federal criminal justice.

Using today’s burning problems in evaluating nominees is folly. McReynold’s Justice owed his appointment to his record as a cartel crusader; Judge Sherman Minton’s appointment was due to his consistent support for the New Deal. Her earlier records did not predict McReynold’s hostility to the welfare state or Minton’s conservatism on civil liberties.

Stakeholders advocate the appointment of federal appellate judges with well-known positions on fashionable issues. State court judges know about criminal matters and family law, and private practitioners know about legal costs and the private sector, but senators don’t care about such things.

This is something new. Judges Holmes, Cardozo, and Brennan came from state courts; Political Office Judges Hughes, Stone, Jackson, Black, Powell, and Rehnquist; Judges Brandeis and Powell from private practice; Judge Frankfurter from the Law Academy. Second Judge Harlan was appointed by the Federal Appeal Bank, but he had barely served there a year.

Federal court appointments were once terminal appointments, not steps up a corporate ladder. The trimming for the office is sometimes very visible. Judge Bork was accused, at least in his speeches, if not in opinions; The District of Columbia Circuit justices, nearly all candidates for promotion, were not brave profiles in terrorism cases. In fact, they practically abolished the habeas corpus writing.

An excessive number of judicial officers in lower courts were either US attorneys or federal judges; A study found that 175 of President Obama’s 300 appointments in the district courts had this background, 49 of them as judges whose job is to issue search warrants, arrest warrants, or post bail. They effectively become part of the prosecution in their day-to-day associations. The work repeats itself and those who engage in it at a young age do so with a view to future funding. Unfortunately, they are being cut off from the concerns of the general public.

Two other factors poison the selection process. The first is political partisanship, from which only Gerald Ford has recently departed with the advice of Attorney General Edward Levi, of which 25 percent of the district courts and 10 percent of the appeals courts were Democrats. Remus only seeks advice from Democratic senators. However, in his 1944 address to the Italian people, Winston Churchill gave seven “simple practical tests” by which freedom in the modern world could be recognized. The third read: “Are the courts free from violence by the executive branch? and from the threat of mob violence and free from any association with certain political parties? “

A second danger is the new fashion for so-called diversity, which has already led to impeachment. Judges who consider themselves members of representative bodies tend to exercise their powers in full. But George Orwell once stated: “The hanging judge, that wicked old man in a scarlet robe and horsehair wig, whom nothing less than dynamite will ever teach what century he lives in, but who will in any case interpret the law according to the books and books will not accept a money bribe under any circumstances, is one of the symbolic figures of England. “The judicial officers appointed by the Attlee administration were almost all products of Eton and Oxford with years of experience in the private bar, who viewed themselves neither as revolutionaries nor as counterrevolutionaries and left social reforms unimpeded. Justice Holmes once said: “At least in state courts there was too little rather than too much [Back Bay in appointments]. Men who find all ideas and books easy are rarely found outside of this class. “Although the freestanding Holmes is remembered as the apostle of majority rule and tolerance of controversial speeches and laws, people forget that he was also the first to write the opinion. Moore v. DempseyApplication of the Bill of Rights to State Criminal Proceedings.

It was futile to hope that President Biden would turn to the state courts and private practitioners of varying experience, and even some Republicans, in his judicial appointments. That would have rescued the federal courts from the political quagmire they got into and, with the consent of the governed, would have helped restore government. Instead, the district courts are to be populated by young and inexperienced lawyers from legal aid and defense offices as well as liberal interest groups. The initiation of a civil lawsuit by the federal government will thus be similar to a Russian roulette game. Forum shopping and manipulation of chamber judge designations and related case forms become endemic, and the tolerance that comes with age and experience becomes a positive disqualification, as does experience with the non-federal parts of the federal system. While the collegial nature of the appellate courts will somewhat mitigate the effects of an influx of inexperienced and partisan judges, the full burden of their entry will be felt by the district courts. There we will have civil justice in criminal matters and plaintiff orientation in civil law cases. The ideal of impartial justice is at war with identity politics; Biden’s judges are looking for experts who Theodore Roosevelt would have stigmatized as “Americans with a hyphen”. Far from allaying or mitigating controversy, the traditional function of justice, Ms. Remus’ approach, will exacerbate and stimulate it.

George W. Liebmann is President of the Baltimore Bar Library Company and author of numerous works on law and history, most recently America’s Political Inventors: The Lost Art of Legislation (Bloomsbury: 2019) and Vox Clamantis in the desert: an iconoclast investigates four failed administrations (Amazon: 2021).



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