Benches, birds, and bees: Daddy, where do judges come from?

From a post today by the estimable Ramesh Ponnuru on The Corner, commenting on what kind of judges John McCain says he will appoint:

First, from an interview in the spring of 2007, on the type of judges he would look for: "I think it’s vital to strictly interpret the Constitution of the United States and have a record of that. Not just a statement of it, but a record of it." That would seem to preclude any Harriet Mierses — and any David Souters.

I'm concerned that both Mr. Ponnuru and Sen. McClain may be profoundly naïve here — almost like a well-meaning child who suggests that we address the problems of birth defects by instructing the storks at the zoo simply to "take those crippled babies back and bring us some new ones."

Taken literally, McCain's quoted statement is entirely impractical if applied to nominees for the United States District Courts. And if this criterion were used even just for the circuit courts of appeals and the Supreme Court, it would radically transform more than two hundred years of judicial selection-making by presidents of both parties. If you're concerned now about the closed-clubbish qualities of many judges, their lack of experience and contact with reality, and the tendencies toward a "secular religion of judges," just wait until this new lodestar for their selection is applied!

It's true that state-court judges frequently are confronted with, and make decisions based upon their interpretation of, the United States Constitution. State-court trial judges routinely consider both state- and federal-court precedents on Fourth Amendment issues in criminal court suppression hearings, or Fifth Amendment confrontation clause issues on ruling on objections to testimony. State-court trial judges with both civil and criminal dockets live and breathe the notions of Due Process, some of which may be grounded solely in state constitutions, but most of which is at least originally derived from and ultimately accountable under the federal Constitution. Likewise, the lawyers who practice in state criminal and civil courts must know of and work with federal constitutional law — sometimes a little, sometimes a lot; sometimes very general (as with due process), sometimes very specialized (as with eminent domain). And by any quantitative measure, and many qualitative ones too, most justice in the United States gets conducted in the state courts, and there are vastly more advocate and judicial man-hours devoted to that process than in the federal court system. Even though we don't write federal con-law opinions day-in and day out, we're not stupid; we actually include many of the best and the brightest and the most successful legal minds.

But as a general rule, although they make rulings and sign short orders stating those rulings, state-court trial judges around the country generate few written opinions, and in many states (including mine) they typically generate practically none. Lawyers who practice in both those state courts and their federal counterparts may generate a trail of memos, motions, and briefs — but those are works of advocacy, from which it's very dangerous to infer personal legal philosophies. Even state-court appellate judges (from whose ranks David Souter was drawn) write most of their opinions on issues of state law, not federal law, and of the federal law issues they deal with, only some of those are federal constitutional law issues.

McCain's criterion, as stated, de-selects from the outset something vastly more than 99% of all licensed lawyers, and probably more than 99% of all lawyers who've ever had an active advocacy practice, either state or federal, trial or appellate. That's an awful way to run a talent search!

Major-league baseball has long maintained farm teams. But they also draft players from college baseball teams, and even from high schools. If we go through the Hall of Fame and start automatically and retroactively disqualifying every player who didn't labor on a farm team for at least ten years before making it to The Show, how much less talented a group of athletes will be left?

Is no one to be eligible even for a federal district court appointment in a McCain administration unless they've first been a state-court appellate judge for a sufficiently long period as to have compiled a sizable body of written rulings based on federal constitutional law? Are no more federal judges at any level to be appointed from the ranks of practicing lawyers, either civil or criminal? No more law professors? No more former U.S. Attorneys, no more former Solicitors General? No more (gasp) former congressmen and senators? Must all federal circuit judges be drawn from the federal district court bench? Must all SCOTUS nominees come from the federal circuit courts?

Because that's not the way it's ever been, not since George Washington first started appointing federal judges.

Even John Roberts had a comparatively short list of federal constitutional law opinions that he'd written in his short stay on the federal court of appeals most likely to deal with them. Most of his career, and most of his career qualifications, came from his work as an advocate — albeit mostly in the federal rather than state-court system, and mostly at the appellate level. He would be the first to point out to you that he's never tried a jury case to a verdict. Do you want a federal bench, all of whose members must also admit to that?

Nor are problems of judicial activism limited to decisions involving the federal Constitution. To the contrary, it's the interpretation and expansion of federal statutes and even the federal common law that gives most knowledgeable conservatives heartburn.

This "cure" misunderstands the disease, and it just won't work. Anyone who takes it literally and seriously doesn't understand the system. Federal judges have never been brought by the "federal con-law opinion stork," and they never will be. This supposed criterion for federal judicial appointments is silly nonsense.