Last week’s column discussed the election of judges and the undue influence of campaign funds. A number of responses suggested doing away with judicial elections, and following the federal path of presidential appointment. 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.
First of all, presidents do not really choose federal judges outside of the Supreme Court. 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. If the 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.
There 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.
At the court of appeals level, incompetent judges have sparked a wave of concern and criticism. 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 decision. Out of more than 10,000 appeals filed last year at the nation’s highest court, only 65 were even considered. 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 “Shut Up.”
Chief Judge Attacks Fellow Judge
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.
Federal 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 with God.”
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 better way.