Now that we know what kinds of federal courts we have in the US, and how judges get appointed,
it’s time to start judging, right?
So, what happens between getting a lifetime appointment and slamming some gavels on some stuff?
Well, it depends on who’s doing the judging.
So before we start shouting “objection!” let’s talk about who is even on the courts.
By now, we know that judges are usually selected because their peers in the legal world, the
Senate, and the President, believe they are qualified to interpret law in the fairest
But it’s important that we recognize that in the US, all the forces that shape who has
access to the kind of education and job opportunities, that qualify you to become a judge in the
first place, aren’t always fair.
Let’s take a look at the demographics of who sits on our courts.
Since the federal court system was created, a total of 3,607 people have been federal judges.
That might sound like a lot, but if you compare it to all of the people who have ever lived
in the US, that is a tiny club.
Even smaller is the group of women judges—only 417 women have ever sat on federal courts.
The first woman to sit on one of the federal courts we’ve discussed, was Florence Allen
who was confirmed to the 6th Circuit Court of Appeals in 1933.
Judge Allen paved the way for more equality in the court system by advocating for women’s
rights from the bench, encouraging young women to become lawyers, and speaking up in favor
of allowing women to be part of juries.
But even though she was popular in her day, and people who knew her and worked with her
hoped she’d become the first woman Supreme Court Justice, that milestone didn’t happen
until almost 50 years later, when Sandra Day O’Connor was appointed.
But the fact is, we had an all-male Supreme Court for nearly 200 years.
That’s why the Supreme Court’s most notorious justice, Ruth Bader Ginsburg famously said
there will be enough women on the court “when there are nine,” highlighting that we still
have a long way to go to shift the gender balance of the courts.
When we look at the racial and ethnic demographics of the courts, things are even less balanced.
People of color make up just over one tenth of federal judges in history, and even when
William Henry Hastie became the first African American federal judge in 1937, non-white
judges were still seen as unqualified for the job by many of their white peers.
Some Senators were so angry about his appointment that Judge Hastie resigned from the District
Court in 1937 and went back to teaching law school, until he got appointed again, this
time to the federal court of appeals, in 1950.
It was one of Judge Hastie’s students, Thurgood Marshall, who would become the first black
Supreme Court Justice in 1967.
But, a lot of Americans had to wait way longer than that to see themselves represented in
For example, Diane Humetewa became the first female Native American federal judge in 2014.
All this is important because federal judges are supposed to be unbiased.
But federal judges also happen to be humans, and unbiased is something that humans rarely are.
One of the best ways to correct for that is to make sure that our judges bring all sorts
of backgrounds and beliefs and experiences to the table so that during the discussion
and debate that’s part of the legal process, they can balance each other out.
But because federal judges have lifetime appointments, it can take a pretty long time for the makeup
of our courts to reflect what our country looks like today.
Now, in addition to the identities and ideas that a judge brings to the court, we should
also look at how they do their jobs once they get there.
Sometimes we get the appointment process right and the new judicial nominee takes their responsibility
really seriously—they carefully consider their cases, and try to make as close to an
objective decision as they can, leaving their own personal interests at the door.
And sometimes we get it wrong.
Even though federal judges get a lifetime appointment, the Senate can decide to kick
them out if they break federal law, or if enough Senators decide the judge is unfit
for the job—
Like the first judge to get removed from their position—John Pickering.
He got kicked off the court in 1804 for, among other things, intoxication on the bench.
Like we said, The American Bar Association is not that kind of bar!
But most of the time when a judge is removed—which is still pretty rare—it’s because they
tried to use their position for personal gain.
Like district court judges Walter Nixon and G. Thomas Porteous Jr, who got the boot for
Fortunately, because of all the work that happens in the process of confirming a judge
to check out and see if the nominees have a shady past, it usually doesn’t come to that.
Ideally, only the honest and qualified judges get confirmed.
So we’ve got judges.
Hopefully they’re representative of the country they serve and they’re ready to
do their job without self interest.
What’s the right way to actually be a judge?
Well, the jury’s still out, pun entirely intended.
Because the way a judge can interpret the law falls on a spectrum.
On one side, we have judicial activism—judges who interpret the law this way usually think
about law as something that should be constantly changing along with us—after all, the world
the constitution was written in looks a lot different from the world today, and doesn’t
always reflect the social and political views we hold today—for instance, slavery
is real bad.
They might believe that their goal is to interpret the general spirit of those laws, but that
the courts should have just as much of a role as Congress or the President in shaping national policy.
On the other side of the spectrum is judicial restraint.
Judges that think restraint is important like to look back at precedent, or the way that
cases have been decided in the past, or the ways that laws have been interpreted before.
In their view, shaping policy is Congress’s job alone, and their job as judges is only
to interpret the original language of the Constitution as closely as they can.
Now, the words judicial activism and judicial restraint aren’t perfect either.
Even though restraint sounds like it might be more neutral, deciding not to take our
changing views and attitudes into account can make just as much of a difference in national
policy as deciding to act on them.
And neither side of this spectrum is any more liberal or conservative than the other, either.
But the way a judge interprets their role can have a HUGE effect on how they rule on cases.
For instance, practicing judicial restraint is what prevented the courts from naturalizing
former slaves as US citizens in Dred Scott v. Sandford because they interpreted the constitution
within the social and political context it was written in 1787.
We have this idea that judges should be perfectly neutral—but humans aren’t perfectly neutral.
And neither one of these ways of interpreting the law is a perfectly neutral stance, which
is what makes the job of being a federal judge so hard.
As a judge, you not only have to understand all of our complex federal laws, but you also
have to figure out which philosophy is going to guide how you understand them—knowing
that even the smallest shift you make in your own thinking can have huge ripples in the
lives of the people you serve.
That’s right—while the federal court system may seem like the smallest branch of our government,
its impact is pretty major.
We’ll get into why the courts even matter and what that means for your life next time—because
they decide all sorts of things that affect you— from who you can marry to how much
you pay for a tomato at the grocery store.