The All of the Above Option for Judicial Reform

 

What do I know?

I’m not a lawyer. Whenever I talk about complex animals like “the law”, I tend to just... not to. I know enough to know how much I don’t know. The basic idea behind a “political civilian” is that one shouldn’t have to be a super - expert in a field in order to properly participate in a representative democracy. Ipso facto (you heard me), we should have more faith in our experts and our credentialing systems. That’s not a fallacious appeal to authority, just an acknowledgement of the usefulness of expertise and institutions - something we’re clearly having trouble with. Wear a mask.

When a bunch of people get together over the course of a decade and say “this person is a doctor”, we should probably take their word for it. But it seems that the same mechanism is hopelessly broken for the legal profession.

Like most jobs that involve rarified expertise, it takes years of post - graduate work to be a lawyer, plus a rigorous credentialing system. Beyond that, to be successful it takes even more years of grunt work (even if you're at the top of your class) to “make it” working as a lawyer. There are big, looming barriers to being an attorney, and even more barriers to becoming a super - prestigious judge. And those barriers are necessary, because the profession’s viability rests in its credibility. If you’re a bad doctor, people die. They figure out you’re bad at it real quick. If you’re a bad lawyer, you can maybe be disbarred eventually if other members of the profession decide that you are hurting their credibility.

Which ain't doing great, at present.

“I’m a lawyer” only has meaning if it is meaningful to the public.

So why doesn’t the broader legal community seem to care that brazenly partisan judges like Kavanaugh and Barrett represent a massive blow to the credibility of the broader legal profession, and judges in particular?

A big part of that has to be the fact the Supreme Court doesn’t exist in a vacuum. Every attorney with the tiniest bit of ambition wants to try a case before the high court, be a clerk in one of their offices, or have their associates or apprentices work there. Pointing out Thomas’ anachronistic arguments, Kavanaugh’s unfit temperament and Barrett’s complete lack of qualifications immediately poisons a deep well of opportunity. We’re collectively resigned to the Supreme Court being as unchangeable and powerful as the tides, so why pick an unwinnable, toxic fight?

It’s incredibly telling that we get retired US Attorneys unafraid to condemn the president in no uncertain terms, but who are entirely silent on the Supreme Court and that president’s appointments to it. It takes a lot of power to be that insulated from criticism.

What the Supreme Court has managed to do - and what Republicans are happy to exploit - is to make themselves immune to “small d” democratic forces. Now, that’s kind of the point - we don’t actually want a judiciary that is subject to the whims of the people. Their fealty is to the law, as corny as that now sounds. At least it should be. But that idea has been corrupted, probably irreparably. I don’t know the exact origins (see above - political civilian speaking), but as soon as one judge allowed themselves to be referred to as “liberal” or “conservative” without objection that insulation from politics should have been revoked. Instead of protecting their impartiality, judges became partisan creatures. Add to that the GOP’s “No more Souters” inanity, and the judiciary is just another political football, unworthy of the esteem it’s still (mostly) held in.

Mostly.

 So what’s the solution? I have to choose... all of them.

Adding two or four justices to make the court larger and dilute specific opinions comes first. It’s kind of a given, even if seemingly extreme. Term limits of 18 years is great as well. Lifetime appointments make no sense in the 21st century. If the average age of an appointment is in their late 40’s or early 50’s that puts them at or near the retirement age at the end of their term. It’s the last job they'll have. Let them retire. We could also have better credentialing. Make them have a unique ABA accreditation to work at the highest levels of the law, Federalist Society approval AND (because there’s not a progressive equivalent) the approval of, say, the ACLU. With that accreditation should also come performance evaluations. When Judge Brett turns in beer - soaked opinions written in crayon, judicial watch dogs should take note, and be empowered to take action. Independent panels could analyze a judge’s rulings and censure and vacate (you heard me) partisan ones.

That's a lot. But again - from a civilian point of view - it should just be unacceptable that we should have to put up with - and devote an incredible amount of emotional energy to - an entirely unaccountable, partisan branch of a government that was specifically designed to be neither. We screwed up. Go back and start over. We need some of these things - any of these things. And it should be clearer to the entire judicial system that - absent reform - with 200+ judges in their ranks appointed by a minority party with an incredibly unpopular ideology is going to lose them their hard - earned power and immunity from criticism.