Judicial independence must be preserved in our federal courts

Judicial independence must be preserved in our federal courts
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Partisan rulings in election cases by federal judges who were appointed by Republicans in the Fifth Circuit, Eighth Circuit, and Eleventh Circuit, with the notable exception of the striking decision by Judge Stephanos Bibas in the Third Circuit, have raised the fear that the ideal of judicial independence and legitimacy of the federal courts are in peril.

Most threatening, of course, was the hurried confirmation of Supreme Court Justice Amy Coney Barrett, so she could be in place to rule on any election cases. That has led to some suggestions that the administration of Joe Biden should consider adding justices to recreate the “ideological balance” on the bench, in a move reminiscent of the notorious proposal by Franklin Roosevelt to pack the Supreme Court with justices.

In addition to three justices, President TrumpDonald TrumpMyPillow CEO to pull ads from Fox News Haaland, Native American leaders press for Indigenous land protections Simone Biles, Vince Lombardi and the courage to walk away MORE has succeeded with over 200 judges in the lower federal courts. Countervailing expansion of the federal courts of appeals would not raise similar alarms. Federal appeals courts usually work in panels of three judges. So if this less dramatic but perhaps more effective move were made, how should it be done? If the ideal of judicial independence is to be preserved rather than eroded, it must not be done in the partisan fashion of the last four years.


In America, no president would consider making a call, in the manner of Soviet era telephone justice, to tell one of his judges how a case should turn out. But would he need to? Take the case in which a federal district court this fall struck down as unconstitutional an attempt by the Texas governor to eliminate ballot drop locations so that there would be only one in each county. The Fifth Circuit reversed this ruling, in a party line vote in the evident interest of Trump, so no call was needed.

Trump had made clear his perception that making voting harder and less convenient with the pandemic would benefit him. Consider the Eleventh Circuit decision by three judges appointed by Trump to reverse a district court ruling that the Florida legislature made an unconstitutional move to once more disenfranchise hundreds of thousands of residents with felony convictions who had served their sentences, disabling the reform backed by a majority of Florida citizens. It would not take a pollster to figure that so many of these people would have voted for Democrats.

A modern president does not need telephone justice. In the internet era, White House staff look over reams of resumes, opinions, and more. By the time a president appoints someone to the bench, he could presume how a judge would rule on most issues. So Barrett told us that Trump did not ask for her stance on any hot button issues, such as abortion, gun rights, and gay marriage, that matter so much to him and his base. He did not need to ask since she herself had told us. The modern vetting process amounts to what could be known as anticipatory telephone justice.

We need to rethink how judicial nominees are selected. A president must of course look for individuals with conviction, knowledge, and experience. Americans do not want judicial nominees to have empty minds but rather open minds. How can a president deliver that? Not as Trump and his team have done by nominating perhaps brilliant but confirmed ideologues, and those as young as possible, so they will sit for decades.

Lawyers known for their judgment and temperament should be selected. Indeed, their honesty and candor should be trusted by the bar if they are practicing attorneys. If the nominees are judges, they should have courts where both sides of cases come away saying, “I was heard and I had a fair shake.” That is a reputation which can only be earned over years. I am not sure it can be earned from years as a professor or a theoretician. That is how we used to do it. I hope that we will return to that.

Charles Fried is a professor for Harvard Law School, a member of the local Federalist Society, and is with the board of the Campaign Legal Center. He was solicitor general with the second Ronald Reagan administration and is a former associate justice of the Supreme Judicial Court of Massachusetts.