Sitting on Great Judges; Where Obama should look when he makes his first appointments to the bench—A Commentary by Emily Bazelon ’00 and Judith Resnik
The following commentary was published on Slate on December 19, 2008.
Sitting on Great Judges; Where Obama should look when he makes his first appointments to the bench.
By Emily Bazelon ’00 and Judith Resnik
Next summer, Barack Obama may get to make a Supreme Court appointment. But before then, he'll give us a preview by filling 13 vacant slots on the federal appeals courts.
The appellate picks relate to the higher-profile question of the Supreme Court; Obama can set up judges to elevate later. (George Bush tapped John Roberts for the D.C. Circuit two years before making him chief justice.) But whether or not they get promoted on high, whoever takes the new seats on the various circuits will have a profound effect on the law. The Supreme Court decides fewer than 90 cases a year; the appellate courts hear 60,000 every year.
Since Ronald Reagan, Republican administrations have self-consciously sought to staff those circuits with judges who share their views. Now it's Obama's turn. During the campaign, he cited Earl Warren as a model, signaling that he wanted more judges with experience in other branches of government. A fine direction. But what's needed right now are new circuit judges who are already expert in changing the law.
Obama should look to sitting district court judges who have shown their dedication to opening up the courts as an avenue for redress. If they go up to the appeals courts, these judges will have more impact more quickly than the lawyers or academics lining up for appointments. District court judges know the ins and outs of their particular circuit's legal rules, and they understand how to fashion standards that trial judges can use. They also know the personalities of the circuit judges they'd be serving with, which helps for effectively negotiating on the standard appellate panel of three.
Examples from different parts of the country help to make the point. Myron Thompson is a district judge in Alabama. President Carter chose him in 1980 at the age of 33 in an effort to put a black judge on Alabama's federal trial court. Thompson's opinions on voting rights and on who has standing to bring lawsuits are regularly invoked by other courts. He's also the judge who was undaunted by Alabama Chief Justice Roy Moore when Moore insisted on displaying a massive granite Ten Commandments monument in the courthouse. Thompson ruled that effort a violation of the constitutionally required separation between church and state. The religious right called for Thompson's impeachment, but the 11th Circuit repeatedly upheld his rulings. Like the stone monument, Moore was finally removed from Alabama's court.
Moving toward the middle of the country, another standout judge is Mark Bennett, appointed by Bill Clinton to Iowa's federal trial court. In 2000, the 8th Circuit asked Bennett to hear a set of cases "by designation" (as district judges occasionally do). He showed what a difference he could make by writing a powerful dissent in a case called Lee v. Kemna. The question was whether the federal courts could hear claims by a criminal defendant, Remon Lee, about why his alibi witnesses disappeared from court before testifying. Lee asked for just one day to look for them, and later it emerged that they might have been sent away by a court official. Without his witnesses, Lee was convicted and sentenced to life without parole. He lost all his bids to be heard—including at the 8th Circuit, where the other two judges on Bennett's panel voted against him. But Bennett's brilliant and detailed dissent caught the attention of the Supreme Court, which reversed 6 to 3. In her opinion, Justice Ruth Bader Ginsburg cited Bennett's argument that the trial judge had assumed that the witnesses had "abandoned" Lee without "a scintilla of evidence or a shred of information."
Our third standout district court judge (who is also a friend and a former Slate blogger) is Nancy Gertner, a Clinton appointee from Massachusetts. She is an expert on the law of sentencing, pioneering the view that judges should interpret, rather than slavishly apply, the federal sentencing guidelines. Gertner is also a leader on equality law. In one case, she ruled that labeling a person not "a real man" was illegal sex stereotyping and so could be the basis of an employment suit. In case after case, she does the hard and detailed legal work of writing careful opinions to explain the law she is applying.
We could add to this list of district court judges (and we invite others to help round it out, too). Our point is that Obama should include some proven and experienced change-makers among his appellate appointments. As Charlie Savage underscored in the New York Times earlier this fall, Bush has appointed more than one-third of the total current federal judiciary. With the aid of his judges, the law of government immunity has grown, shielding from lawsuits more states and their executive officials (and after this term, likely their prosecutors). Meanwhile, the law of liability has shrunk, so that investors trying to show securities violations have a harder time getting into court and then proving their claims. Bush's appointees have also helped narrow opportunities to enforce federal rights, for example against age discrimination or to protect truth-in-lending. And for people who are in detention—seeking asylum, protesting deportation for other reasons, or serving out prison sentences—the paths to federal court are harrowingly slight. Even some Reagan and Bush I judges have written opinions bemoaning the impoverishment of due process, especially for asylum seekers.
On the circuit courts, Bush's influence has been especially strong. In 2001, there were 76 Democratic appointees on the circuit courts and 76 Republican appointees. In January, there will be 63 Democratic appointees and 101 Republican appointees. In percentage terms, the shift is from 50-50 to 62-38. It will take years to bring some of these courts back into balance. But Obama will have a chance right away to alter the composition of the 4th Circuit, based in Richmond, Va., and one of the country's most conservative. Almost two-thirds of the court's active 15 judges are Republican appointees; there are also four vacancies. When Obama fills these open spots and the others around the country, he should look to the district courts for inspiration.
In 1988, Reagan's Justice Department, headed by Attorney General Edwin Meese, strategized about how to change the courts in the ambitiously titled "The Constitution in the Year 2000: Choices Ahead in Constitutional Interpretation." The working paper targeted legal rules that Meese and his aides wanted to change and how to put on the bench judges who were committed to doing that. As professor Dawn Johnsen has detailed, the Republicans realized much of their vision through targeted appointments.
Emily Bazelon is a Slate senior editor. Judith Resnik is the Arthur Liman professor of law at Yale Law School.