Picking the New Judges

THE ATLANTIC

BY ERWIN N. GRISWOLD

DURING his first year in office, President Kennedy will have the opportunity to appoint more than one hundred new federal judges. This is a greater number than any other President has ever appointed in a full four-year term of office. As far as the domestic scene is concerned, this may well be the most important thing our new President does. These judges hold office for life, and the influence of the appointments now made will be felt for twenty or thirty years to come. In our governmental system, the federal judiciary plays a peculiarly important part both in the ordinary administration of justice and in resolving the questions which arise between governments, state and federal, and their citizens, and between the state and federal governments themselves. The federal judge is a leading figure in the community; he sets a tone which can be widely influential in the administration of justice.

A bill to increase the number of federal judges has been pending for the past four or five years. But a Democrat-controlled Congress would not pass it while a Republican President was in office. The block has now been removed. In many cases, the positions have been needed for a long time, and the work of the federal courts can be speeded and improved when the positions have been filled.

It is not enough to provide new judgeships. How they are filled is of crucial importance. Here is at once a great opportunity and a great risk.

Federal judges are nominated by the President and confirmed by the Senate. These are essentially political acts, and that is as it should be. Self-government is one of man’s highest responsibilities, and the political process is fundamental in implementing self-government. It has been urged that the selection of judges be taken out of politics. But that is impossible. On Capitol Hill one hears that the judges, particularly the District Court judges, are in fact named by the senator or senators from the state in which they are to sit, and there is necessarily a large element of truth in that statement. For the President cannot act alone, and he knows that his nominee must be acceptable to the Senate. But by the same token the senators cannot act alone, because a nomination must be made by the President before the Senate can act. In this situation, there must be much give-andtake. Despite the requirement of senatorial approval, the basic responsibility is the President’s, and he and his advisers can go very lar to see that high standards in regard to judicial appointments arc maintained. In the nature of things, he can have more influence on the maintenance of high standards than the senators can.

In England, judges are, in effect, selected by the Lord Chancellor, and legend has it that politics plays no part in the process there. Whether this is strictly true or not, it is clear that great effort is made to raise to the bench lawyers who have demonstrated outstanding qualifications at the bar. The emphasis is on personal character and on high professional performance. Political service, activity, or acquaintance is not an appreciable factor.

Cupyright © 1961, by The Atlantic Monthly Company, Boston 16, Mass. All rights reserved.

We do not have the English system, but it does provide an exceptionally high standard with which to compare our own. It is too much to ask, I suppose, that our judicial appointments should be nonpartisan, but I have never understood why political loyally should be inconsistent with maintaining the highest standards in making judicial appointments. There are plenty of lawyers of high caliber in both parties. Even though most appointments now made will be of Democrats, is that any reason why the Democrats appointed should not be die best qualified?

“Justice, sir, is the great interest of man on earth.” Those words were spoken by Daniel Webster at the funeral of Joseph Story, who was a justice of the Supreme Court for more than thirty years and one of our finest federal judges. Men of integrity with firm, fair minds can make an immeasurable contribution to the public welfare as judges in the federal courts; weak men with petty minds can do incalculable harm. The judge, of course, must be “learned in the law.”This need not be approached in any pedantic sense, but he should be more than a merely routine lawyer. The judicial task is a demanding one, and the judge must have the intellectual capacity, as well as the patience, to preside through a long trial and keep many details in order. He should especially be experienced in dealing with people — experience which he may have obtained as a trial lawyer or in the many other ways which bring an active lawyer into contact with people and their problems. Along with experience, he must have wisdom, that indefinable capacity to see things in terms of their substance, to meld together all of the elements of a situation, legal and factual, and get to the heart of the problem. Above all, he must have character. This includes not merely ordinary honesty and vigor, but also courage — courage to see the right and courage to act accordingly, without fear or favor.

The judge’s task is often a lonely one, and no one should be placed in a federal judicial office who is not able to stand alone if need be. A potential judge needs to remember that President Truman (not an unerring picker) once remarked: “If you can’t stand heat, stay out of the kitchen.”

In recent years there has been, perhaps, an increase in the tendency of some lawyers to seek appointment to the federal bench; to push themselves, to organize support, and to bring political influence and pressure to bear on their own behalf. This is most unfortunate. These are not offices which should be sought; and, generally speaking, the man who actively seeks a federal judgeship is not the man most qualified to fill it. If the President and the Attorney General merely sit back and resolve the pressures which are brought upon them, they will not do the best job. They should actively seek out the most qualified persons for these posts, use their utmost powers of persuasion in gaining their acceptance, and rarely take no for an answer.

THE best place to obtain good information about lawyers and their qualities is from other lawyers. In recent years the Committee on the Judiciary of the American Bar Association has worked closely with the Department of Justice in screening persons who are being considered for judicial appointment, and this has worked well, though usually in a negative sort of way. It has helped to protect us against what might have been the worst appointments; it has not, however, very often led to the making of good appointments. Attorney General Robert Kennedy has given assurance that he will continue to seek the advice of this committee in making recommendations to the President. In this way, professional opinion can be brought to bear in the selection process. Of course, the Attorney General is in no way bound by what he hears, but this can be a most useful and valuable source of information.

The Attorney General plays an important part throughout this process, but the task is a large and complicated one, and he needs the aid of the Deputy Attorney General. We are very fortunate in having a first-class man in this post, Byron White, himself an able, respected, and experienced lawyer from Colorado. In some cases there will be great pressure from a senator for the nomination of a person who, whatever his other qualifications may be, is unfitted for this important office. When this happens, the President and the Department of Justice must not yield. But they must also find a way to work out of the impasse. This means that they must come up with another person of outstanding qualifications who will be acceptable to the senator. Great care must be taken to avoid hurt feelings or loss of face. This is really one of the highest and most useful skills of the politician. No Attorney General can be a good Attorney General unless he has it.

Most of these tussles go on behind the scenes, but a few of them have come out into the open. A memorable occasion was the interchange between Attorney General Mitchell and Senator Schall of Minnesota in the early 1930s. In bringing this to a satisfactory conclusion, by the appointment of Judge Gunnar Nordbye, Attorney General Mitchell not only held out for high standards by refusing to accept an inferior candidate whom the senator wanted for political reasons, but also had the skill and wisdom to come up with another candidate of high qualifications whom the senator was eventually persuaded to accept. More recently, the appointments of Judge Edward Gignoux in Maine and of Judge Henry J. Friendly to the Court of Appeals in New York were brought about by similar exercises of tact and skill in the Department of Justice.

There have been great appointments to the bench of the United States District Courts in the past, and what we need now are more appointments of this caliber. As examples, mention may be made of Thomas D. Thacher, who was appointed by President Coolidge and later served as Solicitor General of the United States and then as a judge of the New York State Court of Appeals; Robert P. Patterson, who was appointed to the District Court by President Herbert Hoover and who was later on the United States Circuit Court of Appeals, and then Undersecretary of War and Secretary of War; Morris A. Soper, who, after serving as Chief Judge of the Supreme Bench of Baltimore City, was appointed to the District Court in Maryland and then advanced to the Circuit Court of Appeals; Charles F. Amidon, who served with distinction on the District Court for North Dakota for many years; and, at an earlier time, Judges Oliver Perry Shiras of Iowa and Rufus Foster of Louisiana.

Men like these can be found for the new openings, as they were found in the past. But it will not just happen; and it will not happen at all unless a conscious and determined effort is made to seek them out and persuade them to serve. Only by such an effort can we be spared the burden of the drones, and worse, who have been appointed in the past, some of whom almost any lawyer can name. Judge Martin T. Manton, convicted of corruption in office while serving as a judge of the United States Court of Appeals, can serve as the prime example of these. It is not so much corruption that we should fear, since that, fortunately, is relatively rare. Plain lack of qualification — intellectual, professional, and temperamental — is more common. To ensure quality, the appointing authorities must set the very highest standards and then see to it that they accept nothing less, regardless of the pressures, whether they be political, personal, or expedient.

In his early appointments to office in the executive branch of the government, President Kennedy has shown that he recognizes competence and character, and he seems to understand that his Administration will be made or broken by the people whom he appoints to office. The President cannot control the judges after they are appointed, for they must be independent of him if they are to be good judges. The President cannot remove them from office, as he can in the case of most executive officers. Thus, his responsibility for judges is absolutely crucial at the time of their appointments.

Mistakes will be with us for a long time, while good appointments will add enduring luster to a President s reputation. Every lawyer remembers that Judge Learned Hand was first appointed a United States District Court judge in 1909 by President William Howard Taft.

An able, upright, and independent judiciary lies at the heart of good government under our system. The one and only point where these qualities can be assured is at the time of appointment. These offices are not political plums. They are posts of great power, requiring tremendous intellectual capacity, wisdom, ability, and professional experience. The nation is entitled to have the places filled by the best available men, and President Kennedy should not settle for less.