The role of judges

Sixth Circuit Judge Alice M. Batchelder  gave an interesting speech entitled "The Judiciary: having 'neither Force nor Will, but merely judgment.'"  It adds to the give and take on this blog over how appellate judges should act and is very timely in light of the significant discussion over the role of judges that took place during Judge Roberts' confirmation hearings.

Comments

[S. COTUS]

Even though I think Roberts is an acceptable pick for the court, this article goes a bit too far. First of all, because there just hasn’t been an opening on the court in awhile, anyone that had recent litigation experience when they were nominated, by virtue of time elapsed, now only has a dim memory of what that experience was like. 20 years from now, Roberts will be in the same position as, say, RBG is now.

Second of all, Roberts, while intelligent and having a “diverse” resume, is probably a tad out of touch with most “real” lawyers. Most real lawyers didn’t clerk for prestigious judges. Heck, most lawyers didn’t clerk for ANY judge! (But reading this and other blogs would give people the opposite impression.) This goes for litigators, too. Roberts never probably had to deal with the economics of selecting cases based on contingency fee arrangements. Roberts never had to deal with junkie clients, or slews or frivolous motions made by lawyers on behalf of insurance companies whose name has the word “State” in them. By the same token, I don’t think he actually ever did “insurance defense,” either.

One of the things that makes people think that Roberts is a “moderate,” whatever that means, is that he has taken on cases on behalf of controversial causes: namely environmental protection and homosexual rights. But he only did so when he had the luxury to do so. Now, I am much younger than Roberts, and because I am not a partner at Hogan, I have to think twice before taking on certain causes because I know just how much the people I am surrounded by hate them. But, if people were to look at my resume and want to have my babies (like most people do with Roberts) I probably could work for any nasty group of people I wanted regardless of the political implications. (Though, political implications do change. After 9/11, large firms acted funny about even representing Americans charged with terrorism. Now just about every large firm (and many mid-sized firms represent some Gitmo detainees.)

Since Roberts has been loved for most of his career, he probably has never had to deal with people flipping out on him “because they can!” He never got screamed at by an associate one year his senior. In the words of Jerry Blank, “Good times!”

Finally, if we really want a “real” lawyer, we might want to consider looking at the myriads of people whose careers are being wasted in DC as “contract” attorneys who are doing little more than document review (and whose lives, ironically, depends on the broad discovery provisions of the FRCP). They know what it is really like, but nobody considers them “real” lawyers.

[S. COTUS]

Oh well, put that comment on the wrong post. Darn all-nighters.