Hear Ye, Hear Ye…

For those of us desperate for any good news, any glimmer of hope that America might eventually emerge from the purgatory into which we’ve been plunged by the MAGA party, a newsletter from the Brennan Center recently offered that glimmer. (No link, sorry.)

On September 30, President Biden announced ten more federal court nominees, bringing the administration’s total number of nominees to 53. Biden also announced four nominees to serve on local D.C. courts.

Biden’s eighth slate of nominees includes two civil rights lawyers and three current or former public defenders. Several of the nominees, if confirmed, would also mark historic firsts: the first Asian American man on the Western District Court of Washington, the first Asian American woman on the Southern District Court of California, and the first Hispanic district court judge in Ohio.

According to CNN, more than 25% of Biden’s nominees to date are Black, 21% are Hispanic or Latino, and 23% are Asian American or Pacific Islanders. Close to 75% are women. In addition, 32% of Biden’s judicial nominees are former public defenders and 25% are civil rights lawyers.

Biden is confirming judges at a rate faster than any other president at this point in their term since Richard Nixon, according to Bloomberg Law. Sixteen of Biden’s judicial nominees have been confirmed so far.

I feared–and still fear–that Mitch McConnell and Donald Trump had ensured a generation in which the federal courts would be lost to principles of justice and equality. After all, they did manage to elevate a number of ideological and, frequently, demonstrably unqualified partisans to those courts. The Biden Administration is clearly aware of the need to ensure the ongoing integrity of the courts, and equally aware of the need to populate the bench with Americans who are both competent and representative of the country as a whole.

So–good news. I’ll take it.

Unfortunately, all the emerging reports about America’s courts are not as positive as that one. That same newsletter relayed the conclusions of an investigation by the Wall Street Journal that found 130 federal judges had violated U.S. law and judicial ethics by “overseeing court cases involving companies in which they or their family owned stock.”

The Journal reported that between 2010 and 2018, 129 federal district court judges and two federal appellate judges had failed to recuse themselves from 685 cases in which they or their families had a financial conflict, and that approximately two-thirds of the rulings subsequently favored the judges’ or their family’s financial interests.

One of the reasons for this country’s current angst is the public’s loss of trust in the institutions of American government. Trump certainly accelerated suspicion of government bureaucrats with his paranoia about the “deep state,” and he fed a wide variety of conspiracy theories, but much of the loss of trust preceded him. (My book, Distrust American Style, was published in 2009, and the phenomenon was anything but new.) Confidence in the administration hit an all-time low under Trump (and for good reason), but Congress has been utterly feckless for well over a decade.

The courts were, for a time, the holdout.

With McConnell’s success in remaking the Supreme Court into an instrument of partisanship, and four years of appointments of partisan hacks  (mostly White men) to the federal bench, those of us who’ve been paying attention lost hope that the courts would salvage constitutional principles–or at the very least, stem the tide.

I doubt that the Biden Administration has the political capital to do what very clearly needs to be done: either enlarge the Supreme Court or impose limits on Justices’ terms of service. Scholars of the judiciary have been advocating various mechanisms for expanding  the Court for years–far preceding McConnell’s mischief–for reasons of efficiency; they’ve also been advocating term limits in recognition of the fact that Justices live much longer than they used to. (Terms of 18 years, the usual recommendation, would probably be long enough to insulate Justices from political pressure– the original reason for lifetime appointments.)

In the absence of meaningful structural change, the nakedly partisan makeup of the Supreme Court is likely to keep trust in the courts low–leaving discontented citizens with nowhere to turn for redress of grievances.

Of course, speaking of “redress of grievances,” we might remind folks that there is this thing called the ballot box…


  1. We have a ballot box, but we’ve also got gerrymandering, with both crooked Democrats and Republicans in office. I mean, the dirt coming out about Manchin who’s killing Biden’s plans is awful.

    Our nation is an oligarchy that has devolved into a kleptocracy. The judges are crooked, and so is the Federal Reserve, as we’ve recently learned. But, that shouldn’t be a surprise because Banksters are corrupt, and where is all the money flowing?

    Now, if you pay attention (see Pandora and Panama Papers), you’ll see it’s flowing to secret offshore tax havens, although Nevada and South Dakota seem well situated.

    If you look at the revolving doors in Washington working for both parties, you’ll find the bills’ authors – tax lawyers, accountants, CEOs, and bankers. Unfortunately, I don’t think any of them are woke or ethical.

    The term I read from woke accountants tracing all this is the Iron Triangle. So let’s see what get’s passed in Congress, and don’t forget the Fed is pumping $120 billion a month into the big banks every single month, even with inflation rising.

    Tick, tock…

  2. I wonder why WSJ didn’t include SCOTUS. Justice Thomas has never recused himself in cases that involved his wife or the organization she leads and there are at least 4 occasions that should have required recusal. Oh that’s right SCOTUS is exempt from the ethics rule of the federal judiciary. If you want reform, start there.

  3. The report stated these 129 judges whose family had stock in companies came from every President since LBj. Judges should be able to invest, but there are mutual funds that would alleviate problems of jurisprudence. If they do invest in single companies they should be able to do an outstanding job of knowing which companies they own.
    Also what is difficult are trademark suits are on the rise as some want to bring a name of credibility while its owned by another company already. Also there are legal institutions which represent those that purchase trademarks or patents looking for those they can sue, unwittingly using an invention commonly used in their new product. Its devastating to smaller companies that then are legally taken over.

  4. Sheila,
    Is there a mechanism available that allows citizens to file formal complaints against federal judges (or any type of judge) that have shown favoritism in a lawsuit? If so, who conducts the investigation?

    Having been the victim of a judge who completely ignored IN state laws and refused to recuse himself, I filed a complaint and he was investigated and removed from the case. Unfortunately, by then it was too late to reverse the millions of dollars of damage he had caused.

    A second question is – why is the illegal activity of judges who are investigated and found guilty kept secret? Personally, I believe they should be removed from the bench and given a massive fine.

    There appears to be no accountability at all for judges who abuse their position of power.

  5. We are much more used to experiencing war in retrospect rather than the horrors of it in real-time, so we underappreciate the fact that in most wars no one knows who is going to win until it’s decided by the other side being decimated and unable to go on.

    Even if you have risen above hating the enemy (and I certainly hope so) in the war for the US, respect their ability to destroy what has been created over 250 years by many sacrifices by so many people. Also, the power of the system that created them and energizes them.

    The stakes are very high. In fact, existential for the experiment in self-governance that has defined our lives.

  6. I agree that we should have term limits on SCOTUS now that people live much longer. I am not sure that this would actually help prevent the draconian moves of partisan lawmakers. Therefore, I think expanding the SCOTUS would also be a good idea. Otherwise, the court will definitely remain partisan. I would prefer that SCOTUS have a balance between those who are originalist in their judicial philosophy and those who are not. Mitch McConnell has undermined the trust progressives have in SCOTUS. I also am dismayed by the way candidates for SCOTUS repeatedly avoid being honest about their personal biases when Congress asks them questions.

    I think we should have term limits on all judges. I also believe there needs to be greater accountablity for those justices who refuse to recuse themselves due to conflicts of interest. I don’t know how effective the current mechanisms are. And who holds a justice accountable if he/she has developed a substance use disorder? I know there is a monitoring program for attorneys with substance use disorders but what about justices? Is there one for them? I am sure that the procedures to hold judges accountable vary from state to state and that some are more effective than others. I’d love to hear more about the procedures in Indiana and other states re holding justices accountable. I’m certain it is not taught in our schools. I think it should be.

    Failure to avoid partisan politics from influencing the courts further threatens our democracy and trust from its citizens in governmental institutions.

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