Judiciary Politics
From the Los Angeles Times:
"After nearly seven years in the White House, President Bush has named 294 judges to the federal courts, giving Republican appointees a solid majority of the seats, including a 60%-to-40% edge over Democrats on the influential U.S. appeals courts."
What's more, by and large these appointees are movement conservatives. The Bush Administration has done a far better job being politically astute and ideological in its nominations to the judiciary than any Administration since Johnson.
At the same time the Chief Justice is leading an effort to increase substantially the pay of judges. The non-transparent thinking is that ideologically fervent judges can apply their philosophy to cases, as opposed to teaching in law schools. But in law schools they are paid a lot more. So the Chief Justice wants to even out the incentives.
Anyone can practice law, and a couple million do; but only a comparative handful from the right and left seek to become the architects of culture. Law firms aren't good places for them.
Law firms don't generally pay for ideological causes. A few firms are, occasionally, identified with political causes, such as plaintiffs' firms that focus on bringing cases that are also causes. Many firms from time to time will represent a government official, or even indigents in pro bono matters. But usually those who want to use law as a tool for social change find that the academy or the bench are the two suitable resting places.
The Bush Administration has opened the door to conservative change agents, and greatly empowered them by lifetime positions on the bench. The next President, who will very likely be a Democrat, will find that the laws passed by a Democratic Congress and the regulations of Democratic agencies will be overturned, overinterpreted, rewritten, and often simply stymied by the judiciary. It happened to FDR and it will happen in 2009 and thereafter.
Among the possible antidotes, at least we can see that we should not encourage today's judiciary to stay on for the mission of thwarting progressive reform by giving them a big raise. I can think of a half-dozen reforms that ought to be coupled with any salary increase, including paying for retirement, just as is done in law firms. I will lay out more of these ideas in the future, but for now it would suffice if the Democratic Congress would please not pay more money to the judiciary we have. If the new appointees left for law schools, where they could earn more and still pursue their ideas, the government would be much more likely to work effectively in the future.
A good idea Reed but doesn't this limit the candidates that the next (Democratic) president might appoint? It goes without saying that it would better suffice if the Dems wouldn't confirm these Federalist Society extreme ideologues in the first place.
January 3, 2008 3:02 PM | Reply | Permalink
A couple quick things.
First, it is not the case that "a couple million" lawyers practice law--it just seems that way, especially when you live in the D.C. area where every other person is a lawyer. The reality is that the legal profession is oversaturated with lawyers. There are roughly 1.2 million JD's in the country, i.e. 1.2 million people who hold a juris doctorate or equivalent degree from a law school, and we're producing something like an additional 20,000 every year. HOWEVER, there are only about 600,000 practicing lawyers in all legal jobs throughout the country--that's including judges, private attorneys, corporate counsel, government lawyers, public prosecutors and defenders, etc--everyone all included. You can check this at the Bureau of Labor Statistics website.
Second, it is not always the case that law professors make more money than judges. Like a lot of other things, it depends on the school. Private law schools such as Harvard, NYU, UChicago, etc, offer substantially higher salaries than even top tier public law schools such as the Universities of Michigan, Virginia, and Texas. At public universities, it is not surprising for professors to earn something like $150,000-$200,000. And those salaries are roughly on par with federal judicial salaries. So, it's not always a great thing to move into legal academics.
The one reform that we really need, imho, is to expand the judiciary in a rational nonpartisan manner. I firmly believe that we simply don't have enough judges in this country and that our courts are often overwhelmed. If we want to stop the abuse of the courts for corporate interests, we need to make justice accessible to everyone and ensure that courts have enough time to fairly examine the cases brought.
January 3, 2008 4:06 PM | Reply | Permalink
Civil Trial Outcomes in 2001 (link)
The Bureau of Justice Statistics has released figures showing a detailed picture of the realities of civil trial outcomes. Overall, the number of civil trials in the U.S. and the median jury trial award have decreased substantially since the early 1990s, and extremely large awards are made in very few cases. In the country’s 75 largest counties—which contain a significant portion of the population—there were 22,451 civil trials in state courts of general jurisdiction in 1992 and only 11,908 in 2001 (Table 1). When adjusted for inflation, the median jury trial award in 1992 was $65,000; in 1996, $40,000, and in 2001, $37,000 (Table 2).
It is estimated that only three percent of all civil cases actually go to trial; most are settled before trial. In 2001, a jury decided almost 75 percent of tort, contract and real property trials (Table 3). Plaintiffs prevailed in 55 percent of the trial cases (Table 4), with punitive damages as well as compensatory damages awarded in 6 percent of these cases (Table 5).
It is estimated that only three percent of all civil cases actually go to trial; most are settled before trial.
The false prosecution and over charging to the extent that one dare not use one’s right to a trial is the real injustice of the Legal system.
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Today, are we searching for I deals or Ideals?
-Thinking
January 3, 2008 4:49 PM | Reply | Permalink
Well, we might as well have the judiciary branch run by morons. That will match the executive branch leadership nicely. Of course, the legislative branch is run by wimps.
January 3, 2008 5:47 PM | Reply | Permalink
It's a bit late to be whining about it now, isn't it?
Maybe seven years of relentless surrender wasn't such a good strategy?
January 3, 2008 6:06 PM | Reply | Permalink
A few reactions:
First, not confirming new right-wing ideologues would not do anything about those already there. To unstack the deck, a Democratic Congress and Administration should unpack the bench.
Before the 2006 elections, the Republican leadership in the House - unintentionally, to be sure - pointed out how this could be done.
Since the lower Federal courts depend on the Congress for their existence, the Democrats could simply defund the entire lower Federal Court system. This would take every right-wing ideologue off the bench in one step.
To avoid chaos, Congress could first pass a restructuring bill that would recreate the system, with new appointments already in place. The new appointees would be selected from the center of the legal profession, i.e. center left to center right.
Current members of each court would be eligible, but with strong filters to prevent the new courts from being repacked with ideologues. A pattern of bias either for against a particular type of plaintiff or defendant, or driven by sectarianism would automatically disqualify anyone.
Second, Congress could review the pattern of decisions by the current Supreme Court, and their testimony during confirmation hearings.
The threat of impeachment for deliberate deception in their confirmation testimony, or a pattern of ideological, class, party, or religious bias could be used as the basis for forcing the retirement of Scalia, Thomas, Roberts, and Alito.
These are both revolutionary steps, but the need to repair the damage done by 40 years of Republican class and religious warfare may make them necessary.
January 4, 2008 8:50 AM | Reply | Permalink