May be time for just 2 levels of judges

A federal appeals court judge, writing in an important case recently, permitted herself the acerbic observation that judges at her level are "more familiar with, and far better equipped to handle, the briefing-and-argument mode of judicial decisionmaking" than are federal district judges. Congress, she suggested, should rethink the question of which judges get to decide important and complex matters like the one she was writing on -- campaign finance -- these being the ones that (she apparently thinks) should be entrusted only to appellate judges.

The judge was right to suggest that Congress rethink the organization of the judiciary. Rather than tinker with the composition of three-judge courts, though, Congress ought to focus on the central problem of the federal judiciary today: the virus of politicization. That virus was identified when the Senate rejected Robert Bork for the Supreme Court. (Or was it let loose by the retaliation for Bork's rejection? Who remembers now?) It has spread and mutated, and it now appears to be endemic. It has paralyzed the Senate's process of advising and consenting on judicial appointments. It threatens to disfigure the face of justice and to undermine the public's trust in an independent judiciary. Judges, who consider themselves just judges and not appointees of any particular president or party, are appalled and embarrassed.

The politicization of the judiciary has recently been the most focused, and most virulent, at the appellate, or circuit, level. That is where the search for a vaccine should be concentrated. The 12 federal appeals courts (plus the Court of Appeals for the Federal Circuit, which is a specialized one) are considered "law giving" courts. Their thousands of decisions each year are usually final; the Supreme Court entertains only about 80 appeals during a term. Many judges of these courts of appeals -- the cardinals of the judiciary - - are prime candidates for appointment to the Supreme Court. Nominees to these circuit courts are visible, and vulnerable, political pawns. Nominees to the 90 district courts -- the trial bench -- have a much easier time of it. If Miguel Estrada and Priscilla Owen had been nominated to district judgeships, they'd have been easily confirmed.

There's no constitutional requirement for intermediate appellate courts in the federal system. Article III of the Constitution provides only for "one Supreme Court, and . . . such inferior courts as the Congress may from time to time ordain and establish." The Judiciary Act of 1789 in fact "ordained and established" only a single level of federal judges beneath the Supreme Court. They were district judges who "rode circuit." They were not only the trial judges but, until the establishment of the circuit courts of appeals in 1891, also sat in panels to hear appeals. What we now call the circuit courts thus have been with us for about a century. Not many of our public institutions go unchanged for that long.

It's time for Congress to consider amending the Judiciary Act to provide once more for just a single category of judges below the Supreme Court. Call all these jurists simply "Article III judges" or U.S. judges. Most of the time they would sit as trial judges, but for, say, three months a year they would be assigned to appellate panels. Congress could require a minimum of five years' trial court experience before an Article III judge became eligible to hear appeals. (Trial judges would especially appreciate that. They chafe at instructions given by appellate judges who have no trial experience.)

There might, under this system, be a need for specialized courts or panels to review the decisions of government agencies -- or, indeed, to deal with cases now assigned to three-judge courts, such as the current challenge to the campaign finance legislation that gave rise to the comment quoted at the beginning of this piece. In most cases, though, Article III judges would sit in panels to review the decisions of other Article III judges. A number of court systems in other countries operate in this way.

There's no need to respond to the suggestion that district judges are ill-equipped to handle the "briefing-and-argument mode of judicial decision-making": In almost all of the circuit courts today, district judges are routinely designated to sit on appellate panels.

Many questions would have to be addressed before the federal judiciary was returned to a single category of Article III judges. But for a Congress that could create a Department of Homeland Security in a few months, the project would be child's play. The payoff, for Congress, for the judiciary and for the American people, would be the virtual elimination of partisan politics from the judicial appointment process -- or at least the dispersion of political fire across a broad field of nominees, none of whom could be assigned to an appellate case until after five years (and then only periodically). The concerns that have given rise to the political obstruction of judicial appointments in recent years would melt away.

James Robertson is a U.S. district judge for the District of Columbia.

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