Several business groups in Louisiana, including the Louisiana Association of Business and Industry, have suggested eliminating the election of judges due to the undue influence of campaign funds. Instead, they propose following the federal model of appointment. But is this system truly better? Do citizens receive more competent jurists through appointments? Certainly not, considering the federal level’s process.
First, presidents do not directly choose federal judges, outside of the Supreme Court. At the district and court of appeals level, the president typically defers to the state’s U.S. senators. If the president is a Democrat, the Democratic senator in the proposed appointee’s home state makes the recommendation. Therefore, in most states, qualifying as a federal judge depends more on connections than on merit.
Huey Long captured this sentiment well: “I’m all for appointin’ judges as long as I can do the appointin’.” Cronyism has influenced numerous federal judicial appointments in Louisiana.
At the court of appeals level, concerns about incompetent judges have grown. Since the U.S. Supreme Court hears fewer cases each year, the federal courts of appeals often represent the final hope for overturning lower court decisions. Out of more than 10,000 appeals filed last year, the Supreme Court considered only 65. The action is at the appeals court level, and unfortunately, the U.S. Fifth Circuit in New Orleans stands out as particularly problematic.
For evidence, search for the U.S. Fifth Circuit, and you’ll encounter headlines such as:
- “Fifth Circuit Covers Up Serious Judicial Misconduct”
- “Another Conflict of Interest Uncovered on the Fifth Circuit”
- “Judicial Diva Gone Wild? Chief Judge Tells Fellow Judge to ‘Shut Up.'”
- “Chief Judge Attacks Fellow Judge”
- “Judge Clement Makes Friends with Big Oil”
- “Pattern of Misconduct Demands Full Investigation of Fifth Circuit Judge”
These headlines reflect ongoing conflicts and personal vendettas at the Fifth Circuit Court. The Fifth Circuit frequently leads the nation in decisions overturned by the U.S. Supreme Court. In an exposé, the Times-Picayune quoted Supreme Court Justices and law professors criticizing the Fifth Circuit’s rulings. University of Houston law professor David Dow stated that the Supreme Court “has lost confidence in the Fifth Circuit’s handling of capital cases.” Retired Justice Sandra Day O’Connor bluntly criticized the Fifth Circuit, accusing it of “paying lip service to principles of jurisprudence,” often with reasoning that “has no foundation in the decisions of this court.”
It’s unfortunate that the Fifth Circuit’s reputation has suffered so greatly, especially considering the high regard for Louisiana federal judges like John Minor Wisdom, J. Skelly Wright, and Albert Tate during the civil rights era. Their work was widely admired and cited in top law schools. Today, with such a mediocre judicial stature on the Fifth Circuit, Louisiana is unlikely to see one of its own move to the nation’s highest court.
Federal court observers have a term for judges lacking the necessary scholarship, temperament, and learning: “gray mice.” The Fifth Circuit Court of Appeals appears to be full of them. Unfortunately, short of impeachment, little can be done to address this incompetence. This ongoing issue further tarnishes Louisiana’s reputation.
This criticism does not apply to all judges in the federal system. Many are hardworking and well-meaning. However, the Fifth Circuit out of New Orleans exemplifies how not to select federal judges. A better method is needed.
Peace and Justice,
Jim Brown
Jim Brown’s syndicated column appears weekly in numerous newspapers and on websites worldwide. For past columns and updates, visit http://www.jimbrownusa.com.