As is often the case, I learned that something I wrote on these pages the other day failed to capture the entire truth. I questioned why criminal defense lawyers weren’t invited to apply for the vacancy for a federal trial judge in Connecticut. It turns out at least one or more was interviewed. So let me reframe the essay: Why is Akhil Reed Amar selecting our judicial candidates?
Danbury Attorney James Diamond was among the 20 or so folks interviewed by a secret panel to screen candidate for the job. He is a regular in the criminal courts on the western side of the state. In more than 20 years experience in the criminal courts, he’s tried murder cases, kidnapping cases, larcenies and sexual assaults. He has six years experience as a prosecutor. He has prosecuted and defended civil cases in the state courts. He’s served as an advisor to New York State Attorney General Robert Abrams, been elected to municipal office in Stamford, won civic awards for community service, and is active in his community of faith. What’s more, he’s a decent human being, the sort of guy who picks up the phone at all hours to answer questions. To see him in court is always to see a smile and welcoming presence.
All that Diamond lacks is an Ivy League pedigree. You see, he went to college at the State University of New York at Albany, and attended the Brooklyn Law School, from which he graduated in 1988. He’s never clerked for a federal judge or written articles for legal academics. He taught legal studies at Western Connecticut State University from 1990 to 2005.
I doubt that many of the hundreds of folks he represented during the past twenty-two years cared much about his resume. They wanted an effective courtroom advocate, someone who knew the law, the players and how the legal system worked. What his clients didn’t want was a legal theoretician who couldn’t tell a courthouse door from the door to a law library.
Diamond is just the sort of candidate we should be encouraging to seek appointment to the federal bench. But he apparently did not make the final cut. Instead, the blue-ribbon panel selected four candidates, two from Harvard and two from Yale. Not one is a criminal defense lawyer; not one has apparently every earned a living from the fees he could garner representing ordinary people in crisis.
One of the members of the panel screening candidates is a Yale law professor named Akhil Reed Amar. He is a fifty-something legal academic who writes fantastic books on Constitutional law and the Bill of Rights. I read his popular publications to provide me with a theoretical sense of place. He’s brilliant, all right, and he lets the world know about it. It’s right there on the curriculum vita he posted on his Yale faculty web site: A perfect grade-point average as an undergraduate at Yale – yes, a fifty-something year-old guy advertises that! Impressive awards as a law student. A clerkship on the United States Supreme Court. And scholarly articles by the fist full. Amar is the real deal – a certifiable legal academic. I am sure the content of all his briefs glitters.
Yet for all the impressive credentials I can’t help but wonder whether he’d knock himself out opening the door to a federal courthouse. The law is not theory; it is people in need, the wedding of pragmatic legal doctrine to the often tragic situation of actual people in real need. As near as I can tell, Reed is a novice in the courtroom. If he’s tried a case, he is not talking about it.
If experience in court matters in the selection of judges, and I will agree that it does, then what is Reed doing on the panel? We don’t certify surgeons who’ve merely read treatises on what it is like to operate. Being there matters, in the surgical theater and in the courtroom.
The federal courts are an extremely forgiving and user-friendly sort of place, at least in Connecticut. Each judge has at least two full-time law clerks. While none of these clerks can give legal advice, I have found it far easier over the years to get answers to questions about cases from the federal courts than I have the state courts. (In Connecticut, judges do not have full-time clerks; getting answers to simple questions is often not possible.) A judge confronting an issue foreign to his practice area has ample resources to research the procedural issues presented. What’s more, federal judges live in a timeless bubble: they issue their opinions only when they are good and ready to do so.
Senators Joseph Lieberman and Richard Blumenthal owe all the candidates on the panel a look of their own. Practice conceived isn’t theory relieved. How about putting a criminal defense lawyer on the bench, Senator? Jim Diamond has the respect of his peers and is qualified. See for yourself. It takes more than a textbook to understand what goes on in a courtroom. Experience matters.