Lewis, Barbara

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University of Kentucky

Kentucky Law JournalVolume 77 | Issue 3 Article 101989Commentary on Selecting Federal JudgesBarbara LewisUniversity of LouisvilleFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Judges CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Symposium Article is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in KentuckyLaw Journal by an authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationLewis, Barbara (1989) "Commentary on Selecting Federal Judges," Kentucky Law Journal: Vol. 77 : Iss. 3 , Article 10.Available at: https://uknowledge.uky.edu/klj/vol77/iss3/10Commentary on Selecting FederalJudgesBy BARBARA LEWIS*The Bork nomination was amazing to me. I collected theunsolicited information which I received about that nomination,most of which opposed the nomination. The anti-Bork propa-ganda that I received during the Senate confirmation hearingsmeasured fifteen inches high. Some of the material was wellresearched and very sophisticated-obviously a professional job.There was even an issue of a law review devoted to the Borknomination. There was an extraordinary mobilization of re-sources against the nomination.As a legal educator, and as a person who is interested in thelaw as a profession and, of course, concerned about the courts,I have grave reservations about the political aspects of the ap-pointment of the federal judiciary. As has been pointed out, ithas become a public court, and it has become an increasinglyimportant court. The very concept of a spite nomination isappalling. This does not serve the interests of the United States.It does not serve the interests of the public, and it certainly doesnot serve justice. Fortunately, I take heart in Professor Fish'sstatement that the third nominee usually has extensive and highlyprofessional qualifications. The spite nominations apparently arenot accepted by the Senate. The Senate does not lie down andaccept the spite nomination merely because. it is tired. But thisis a potentially serious problem. There is a need for much furtherstudy in this area. It is to be hoped that publication of thisSymposium will have an influence on decision-makers.There are two major concerns when federal judges are se-lected primarily on the basis of their personal and politicalphilosophy or ideology. First, there is a very real problem withcommunication relating to the adequacy of the information con-* Dean, University of Louisville School of Law.KENTUCKY LAW JOURNALcerning the nominees. To what extent are the majority of usvictims of those who process information (whether it be themedia, or the staffs of various organizations, or whomever)? Itis distressing that so many people failed to understand whoJustice Roberts was and exactly whom they were confirming.Why did not the Senate realize that Justice Roberts was not theman it thought he was prior to confirmation of his appointment?If the Senate did not know, then surely the public did not know.This should be an ongoing concern.The second concern in the appointment of the federal judi-ciary when ideology is a major factor is the premise that one'sideology will affect the outcome in cases before the court. Thisassumption ignores the judge's obligations to apply establishedlegal principles and to follow precedent. I question the validityof an assumption that judges are free to elevate their personalideology above established legal concepts. This may be a muchmore serious problem in the lower courts than it is on theSupreme Court level. A number of the federal district courtjudges who are appointed are young; they are in their early tomid-forties. This means they are going to be on the bench fora long time, and they may have a possibly disproportionateimpact on the development of the law. On the other hand, therehave been numerous articles about the impact of becoming afederal judge and the socialization process of serving on thebench. Perhaps that process prevents extremes from developingat either end of the spectrum. Perhaps it prevents the judiciaryfrom becoming either too liberal or too conservative as a whole.There is no reason to believe that the judiciary does elevateideology above legal precedent or legal principles.I join my colleague, Professor Walker, in not attempting tocombine the two papers of Professors Fish and Atkins. One ofthe great strengths of American jurisprudence is that it is prag-matic. It is therefore responsive to society and to the needs ofsociety as those needs develop. It is responsive to changing legalperspectives as well as changing social perspectives. That prag-matism, coupled with our diversity, is our great strength and iswhat makes our judicial system work. As a proponent of prag-matic jurisprudence, I believe that any judicial decision shouldreflect current aspects of society. I am very pleased that we donot have a closed system such as that of England. For obvious[VOL. 77COMMENTARYreasons I am not particularly supportive of either a legal systemor a judiciary that is limited to "well-connected" white males.In terms of the development of American jurisprudence and ofour selection of the judiciary, the development of a more diversejudiciary is important and significant. Women are entering thelegal and judicial fields in increasing numbers. In the UnitedStates today, 45% of the law students enrolled are female. Onlyabout 12% of the enrollment consists of minority students, butthat percentage is growing. This will develop a pool that willenable us to increasingly diversify the composition of the judi-ciary.Professor Atkins discussed the fact that the two systemsconverge ultimately. He discussed the socializing process thatbeing a member of the judiciary appears to have. I submit thatthere are some other factors that should be taken into accountwhen one considers the lack of conflict among the opinions fromthe appellate courts.First, there is an increasing concern about administration onthe part of the judiciary. Judges are spending an increasingamount of time on administration. Further, they are being heldresponsible for prompt decision-making, for control of theirdockets, and for processing cases as expeditiously as possiblewithout in any way abrogating the rights of the parties. Second,there is a much larger number of cases to be processed. Thelack of additional opinions in the form either of concurring ordissenting opinions at the appellate court level is in part afunction of the limited amount of time available.I don't know whether there has been an extended study ofthe amount of conflict among the circuits. It should be noted,however, that although there are few multiple opinions in cases,there are many areas in which there is a conflict, not among thethree judges on a panel but among the circuits. For example,the Court of Appeals for the Fifth and Eighth Circuits mayreach diametrically opposed positions on essentially the samequestion of law with the same fact pattern.While there is a tendency, increasingly, to see the governmentas a winner in cases, there are some factors that should be takeninto consideration in evaluating this tendency. One factor is thegreat resources that are available to the government in the selec-tion of their cases. There are very good reasons why the govern-1988-89]KENTUCKY LAW JOURNALment should win more often than it loses at the appellate level.The government, since it is involved in a number of cases onany given issue, may choose very carefully which cases to appeal.There is no reason to appeal a case which it anticipates losing.The government has the resources to choose to settle any case.Further, in the event that an appeal is anticipated from the otherparty, the government has the resources to tender to the otherparty an acceptable settlement. Since the government generallyhas substantially greater resources than the other litigant, thegovernment can afford to limit appeals to cases which it is likelyto win. It should also be noted that the government is generallyparty to a number of cases involving the same issue and cantherefore select the best possible fact situation to support itsposition. The lack of resources, or the cost of an appeal, is amajor factor in the individual's decision as to whether an appealshould be filed. This is not a limitation for the federal govern-ment. Litigation is expensive. It is incredibly expensive to theindividual. Obviously the government has substantially greaterfinancial resources and has a vast pool of attorneys and person-nel to handle litigation. Further, the extended period of timeinvolved in an appeal as well as the amount of energy consumedin litigation is much more detrimental to the individual litigantthan to the government. I respectfully submit that these factorsare critical in evaluating the reasons the government prevails inmore cases than not.[VOL. 77

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