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February 13th, 2010 12:47 pm
Who Isn’t Qualified to be a Federal Judge?

The arbitrary love a vacuum, so when they find one, the temptation to fill it with inanity usually proves too great. Consider the case of Gloria Navarro. By all accounts, she is an accomplished Nevada attorney whose work as a public defender and prosecutor has won her a presidential nomination to be a federal district judge. While I suspect her judicial philosophy is to the left of Clarence Thomas, I nonetheless acknowledge that she is “qualified” to serve on the bench, if by that term it means owning a bar license and practicing as an attorney. Then again, those are my requirements, not the Constitution’s. While the nation’s fundamental law details the age and citizenship requirements for the president and members of Congress, it has no specific qualifications for being a federal judge.

But don’t tell that to the politicians who impose them nonetheless. Since adult conversations about judicial philosophy are off the table, most presidents and senators resort to indirect indicia of competency like schools attended, grades earned, and clients represented. Some demand judicial experience. Others, like Senator Harry Reid with Navarro, prefer “real world” (i.e. non-judicial) experience when it suits their nominee.

In fact, there’s more than a tinge of bias against attorneys who didn’t hit their professional stride until well after beginning the practice of law. To hear politicians and pundits, unless a lawyer’s resume includes Ivy League credentials and a federal clerkship followed by a career serving the upper echelons of government and mammon, a president shouldn’t even bother with a nomination. Yet, these types of opportunities depend on a level of access that is unattainable for most people in their teens and twenties. It is almost as if the comparatively unfettered ability to rise in the political and economic realms must be compensated for when it comes to peopling the bench. Though many in the academy lionize him, few spend much time discussing the fact that Robert Jackson rose to prominence and then the Supreme Court without having trodden the golden path of law review, clerkship, and partner.

All of which makes the American Bar Association’s judicial rating system seem like an exercise in subjective grading. When a nominee’s rating depends on the make-up of a particular committee, the resulting scores have all the marks of a high school prom vote. Like an American Idol panel, an ABA process does not (and perhaps, cannot) employ a consistent standard for judging someone “qualified” when there are no concrete qualifications to use.

Instead of weighting a “qualified” rating towards accomplishments clustered at the beginning of a career, the ABA should reward nominees that have made significant contributions to the practice or study of law. After all, a good judge is someone who appreciates both the realities of legal practice, and the history, philosophy, and structure of the American Constitutional order. Lawyers serving as judges should have a breadth of experience and a depth of knowledge. If that sounds too much like the exceptional being the enemy of the competent, it is. But it emphasizes the accomplishments earned over a career, not standardized test scores. Be not afraid; there are more than enough attorneys to “qualify” under such a standard. It just may take a little extra work to find them.

Hopefully, the Obama Administration will come to the same realization its predecessor did and chuck the pretense that a professional cartel like the ABA can be objective. Like any advisor, when the ABA stopped providing useful information it was rightly fired. With one of President Obama’s own nominees getting less respect than her achievements deserve, now would be a good time to make the break permanent. Maybe then competent attorneys like Navarro can move past debates about qualifications to more serious matters: like whether her judicial philosophy squares with the Constitution itself.

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