Ken White sheds light on the current flap about a nominee for U.S. District Court who hasn’t argued a motion and had trouble at a hearing identifying some reasonably well-known elements of current federal civil procedure. As Ken points out, those gaps are in some ways much more serious in an aspirant for the trial bench than they might be for an appellate judge.
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One of the oddest things about accepting the nomination is that he can’t possibly have any appreciation of what the job actually entails, having not spent time in a courtroom.
At its most basic level, who shows up to a job interview without knowing about the job?
Doesn’t the job entail making fair and impartial decisions?
I am not sure I buy into the idea that one cannot appreciate the law or being fair and impartial without having spent time in a courtroom. It seems to me that the argument is this candidate may not know the procedures of a courtroom, which is a different can of worms than not knowing the job.
There is a feeling out in the real world that judges, lawyers and the legal system exist in part, to protect themselves – to exclude the common person from appearing in a court without some sort of legal representation at a high cost to the common person. What used to be people coming to court for justice now becomes trials and cases that drag on forever. (There are no incentives for judges and lawyers to move cases along. Judges don’t seem to care and lawyers get more billable hours the longer motions, depositions, etc, are dragged out.)
At its most basic level, who shows up to a job interview without knowing about the job?
Most people. Do you think that a guy who applies at McDonalds understands the cooking process McDonald’s uses? Do you think they know how the register works? The computer systems?
Where does the idea of an apprentice in most trades come from? Do apprentices know the job before being hired? Interns?
Everyday there are cases where judges have their decisions overturned. The decision to overturn can then be overturned and that decision overturned. So with all of these people in the courts who supposedly know that is going on, why are cases overturned? It seems that experience doesn’t matter – but intellect does.
Some / many / most people believe the judicial system is broken or at least a need of a change. People within the system seldom want change or want to affect change for fear of ticking of someone higher in the judicial pecking order.
Corporations are like that as well. Change often comes with new eyes on problems and issues and ways to make things better. Maybe, just maybe, that is what the legal system needs as well; new eyes.
Decisions of trial courts are sometimes overturned because of errors in procedure on the part of the judge that experience might have avoided. Judges often make snap decisions on objections and the admissibility of evidence. They may deny motions for mistrial on the spot. They may let a lawyer or witness slip in something that the jury should not have heard where a more experienced judge might have realized what was coming and been more aggressive about interrupting. It’s true that a smart but inexperienced judge can make up to some extent for lack of experience when there is time to do research, consult clerks and colleagues, and so forth, but there are things that a judge has to do quickly and on his or her own, and for those experience can make a difference.
Bill Poser,
In some ways, you made my point. If so called “experienced” judges make the so called “procedural errors,” how is that different than the inexperienced judge?
The current system is more interested in protecting itself rather than advancing and seeking justice.
This is like arguing that, since the experienced engineers at NASA have made mistakes sometimes, we should replace them with a middle school model rocketry club.
Alex,
Sorry, but I disagree that physical sciences with measurable outcomes are the same as a court where nothing is an absolute.
Furthermore, you seem to be saying that NASA should never hire engineers that have not been engineers before. If that is the standard, we can never have new judges.
As you brought up NASA, you may remember the Challenger accident. You may also remember that NASA conducted both an internal audit of systems and an independent external audit of systems to find the cause of the disaster and to prevent future accidents. (O rings anyone?)
One of the lesser issues found beyond the O rings was that there were over 3000 potentially catastrophic problems with the computer programming of the shuttle. The code was written by the NASA “experts” and “experienced” people.
The outside investigation which found the errors was a bunch of college kids that had not yet graduated. They were able to see the systemic errors built into the programming that people in NASA were glossing over and missing. Sometimes new eyes can help.
Finally, you may also remember the classic Miracle on 34th Street (the 1947 original version.) (It’s Christmas time so I am bringing this up.)
There’s an exchange between Judge Harper and the son of the Assistant DA named Tommy.
HARPER: Tommy,you know the difference… between telling the truth and telling a lie, right?
TOMMY: Everybody knows you shouldn’t tell a lie…especially in court.
So apparently we have kids who know more about right and wrong as well as truth and lies than many who work and or appear in courtrooms.
And the kid didn’t even go to law school.
I think we may be using different notions of “experienced”. I’m suggesting that judges with litigation experience but not long on the bench are more likely to make certain kinds of errors than judges who have been on the bench a long time. So the judges I am calling “inexperienced” are judges with little time on the bench. You are thinking of these same judges as “experienced” because most of them have prior experience with litigation.
@ Bill Poser,
In that case, since there are no federal judicial positions below the district court, where do you expect to find “experienced” judges for district court openings?
I am not sure I buy into the idea that one cannot appreciate the law or being fair and impartial without having spent time in a courtroom.
I’ve never heard a trial lawyer say such a thing, regardless of whether the matter is civil or criminal, and regardless of who they represent.
Do you think that a guy who applies at McDonalds understands the cooking process McDonald’s uses?
I’m also certain I’ve never heard a lawyer compare being a federal trial judge to a burger flipper.
Some / many / most people believe the judicial system is broken or at least a need of a change.
You can’t fix a system (assuming it is even broken) when you don’t know anything about it.
“You can’t fix a system (assuming it is even broken) when you don’t know anything about it.”
Sometimes a system is so badly broken that it can’t be fixed and you to need to go back to the drawing board and start over from scratch. ;
In such cases, some one with a lot of experience in the old system is likely to be emotionally invested in the old system and may be biased towards repeating the same design flaws in the old system.
Sometimes a system is so badly broken that it can’t be fixed and you to need to go back to the drawing board and start over from scratch.
That isn’t what judges do.
Maybe they could learn somewhere, I don’t know, besides being on the federal bench.
So the only criteria is, what, being an alleged smart person?
Funny how these issues didn’t bite Obama appointees with less experience.
http://www.nationalreview.com/bench-memos
And didn’t Ronnie White fail the bar the first time around?
The news media outrage reeks of partisanship.
Democrats have populated the bench with the likes of Kim McLane Wardlaw–a judge who has been reversed by per curiam opinion a staggering four times. So why is the issue in the media always extremist or incompetent GOP judges?
Because the media is always extremist or incompetent journalists?
Because there is just no comparison.
Mr. Miller, please explain.
This nominee’s qualifications for the trial court bench are scanty, but no scantier than some sitting trial judges appointed by Obama. As Carrie Severino noted in The National Review, Obama appointed even less qualified judges to the trial courts, such as Alison Nathan, who had never appeared in court, and Kentanji Jackson, who had never tried a case or handled one to a verdict.
This nominee might be better suited to an appellate court.
But, of course, appellate courts rule on matters brought up from lower courts. Seems like it’s easier to rule on whether a judge abused his discretion if you’ve actually a judge, or at least spent some time arguing in front of one.
So, are there any reports on how judges like Nathan and Jackson are doing?
One thing that surprises me is that he didn’t bone up for his hearing. He went to a respectable law school and passed the Utah bar exam, so he must once have been reasonably familiar with the law of civil and criminal procedure and evidence. And of course there are all sorts of materials available for review. He seems to be reasonably intelligent. Why didn’t he read up a little?
It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so. Mark Twain
For many, jurist, physician, engineer, it is often the better professional that knows what it is that they do not know, than to think they know all there is to know. While he had little concrete to state about the practice of law, he showed the ability to avoid making off the cuff guesses.
So from mr kennedy’s line of questioning, I am no more certain of his credentials, than before. Perhaps me Kennedy was ineffective in choosing questions.
The nomination has now been withdrawn:
http://www.cnn.com/2017/12/18/politics/trump-judicial-nominee-petersen-withdraws/index.html