Hatch calls for judicial nominees with ‘character and ability’

Senator Orrin Hatch (R-UT), the senior member and former Chairman of the Senate Judiciary Committee, spoke to the Judicial Conference of the United States about the characteristics of a good judge.

Having participated in more than 1800 federal judge confirmations, Senator Hatch shared his thoughts on the type of judges that should be confirmed, emphasizing the importance of character and ability.

“What matters most is character and ability. I don’t want a judicial monastery. I don’t want a federal bench filled with judges who all have the same background. The ABA may have its own ideas about what type of experience is or is not important, or what sorts of jobs nominees need to have on their resume to check the box. You show me a nominee who is fair, who is honest, and who is going to work their tail off to make sure all litigants before them get a fair shake—that’s the nominee I want on the bench.”

The full remarks, as prepared for delivery, are below:

Thank you very much for that warm welcome, and thank you to Judge Benson for inviting me to speak to you today. 

You know, whenever I speak to a group like this, I’m reminded of an old joke: What’s the difference between a good lawyer and a great lawyer? A good lawyer knows the law. A greatlawyer knows the judge.

I see a lot of familiar faces here today. I suppose that makes me a great lawyer. Or maybe just very fortunate.

As I’m sure you all know, I’ll be retiring at the end of this year after four decades in the Senate. I’ve seen a lot of colleagues come and go during that time. I’ve seen a lot of judges come and go, too.

A member of my staff told me recently that I’ve participated in the confirmation of more federal judges than any Senator in U.S. history—over 1800, in fact.

We’ve had some really terrific nominees. We’ve also had some less terrific nominees. On the whole, however, they’ve been a tremendously impressive bunch.

I thought I’d take some time today to talk about the qualities I believe we should look for in our judicial nominees. I believe I speak with some authority on this issue, as one who has seen a lotof nominees in his time.

When we evaluate nominees, there’s a temptation, I think, to look for hard factors—the sorts of things we can quantify numerically. Years of experience, number of cases tried—those sorts of things.

Experience is important, obviously. But what makes a judge great is not how many cases he tried in private practice, or how many appeals she argued.

Indeed, when lawyers become judges, we expect them to set their roles as advocates aside. Experience is important insofar as it breeds familiarity with court rules and procedures. But experience alone does not a great judge make. And court rules and procedure can be learned—by anyone.

Rather, what we should be focused on is ability. We need judges who are whip smart, who can digest complex factual records and cut through dense legal doctrines to find the right answer.

We also need judges who are fair. It will not do to have the most brilliant judge in the world if that judge is hopelessly biased against certain litigants. Judges need to be able to suspend judgment—to avoid reaching a decision—until they have reviewed all of the evidence and considered all of the relevant factors. And that is no small thing. Giving all sides a fair shake is difficult. Not all causes are sympathetic. Not all litigants are likeable. Indeed, some are downright obnoxious. Judges must be able to look past those sorts of things.

We also need judges who are honest. And I don’t just mean we need judges who don’t take bribes, though obviously we need judges who don’t take bribes.

We need judges who are honest with themselves and with the litigants. And this ties back to the point about fairness. An honest judge gives both sides a fair shake. An honest judge does not prejudge cases. Because an honest judge, a truly honest judge, recognizes that she is not the master. The law is. Or to put the point a bit more finely, the law that the people have enacted through their elected representatives is the master.

Judicial honesty and judicial humility are inextricably linked. An honest judge understands her role in our constitutional system. She does not impose her will, nor does she seek to expand her authority. She applies the law and she decides cases. And she does so without respect to persons, as the judicial oath commands. No more. No less.

The challenge in selecting judicial nominees is that these characteristics are of a somewhat ineffable nature. How do you judge ability? How do you determine fairness, or honesty?

It’s tempting, as I said, to focus on hard factors. But the number of cases tried tells you nothing about disposition. Years of experience tells you nothing about honesty. Indeed, it may be that there is a negative correlation between honesty and years of practice.

To be sure, I don’t want judges who are clueless. But if, as I have suggested, great judging is about character, and about ability, we are wrong to obsess over data points that don’t actually map onto those essential traits.

I’ll say it again: Rules and procedure can be learned. They are not rocket science. In many ways they’re formulaic.

Character and ability, though—those are harder to come by. And they’re what matter in the long run. After six months, or a year, a judge who came onto the bench without an extensive trial background will have a pretty good sense of how all the rules and procedures work. We’ve seen plenty of examples of that in our nation’s history, including in my own state of Utah.

Judge Ted Stewart, whom many of you know, was criticized when he was nominated to the U.S. District Court in Utah because he hadn’t tried a case. He had a wealth of experience, including as a senior legislative aide here in Washington. But some people fixated on his lack of trials.

Well, I knew Ted. I knew his character and his ability. And I knew he’d be a fine judge, which is why I recommended him to the President and strongly supported his confirmation.

And I was right about Ted. He went on to become the Chief Judge of the U.S. District Court in Utah and an excellent jurist. He’s highly regarded throughout the state for his fairness and his thoughtful opinions.

Other judges who took the bench without having tried a case include Alvin Thompson of the U.S. District Court in Connecticut and Robert Dow of the Northern District of Illinois. These judges show that what counts is character and ability, not a particular background. In short time they became expert judges and are today highly respected members of the federal bench.

The problem, of course, is that these somewhat ineffable character traits that I have identified as being so important to good judging are difficult to quantify. How do you measure honesty, or ability? Far easier to fixate on statistics about cases tried or appeals argued.

There’s another reason why the focus on hard factors is, in my view, problematic. And that’s the preference it gives to practitioners.

Now, don’t get me wrong here. Practitioners are great. I was once a practitioner. Some of my best friends are practitioners. But not all judges should be practitioners. Diversity of experience is a healthy thing.

We hear a frequent criticism about the Supreme Court—all of the Justices are former federal court of appeals judges. Well, all except one, who was the Solicitor General of the United States, the closest thing in legal practice to a federal court of appeals judge.

In years past, Supreme Court Justices came from a variety of backgrounds: state court judges, federal judges, senators, attorneys general, governors, practitioners. Some of the greatest Justices in our nation’s history had no judicial experience, and sometimes not even that muchlegal experience, before their appointment to the nation’s highest court. But that’s all changed.

Today we have a pretty clear career path for aspiring Supreme Court Justices. Ivy League education; fancy clerkship, preferably a Supreme Court clerkship; elite law practice, ideally appellate in nature; maybe some academia mixed in; federal court of appeals judge; feeder judge; then the gold ring. You can go down the line: Roberts, Ginsburg, Breyer, Alito, Kagan, Gorsuch. Nearly all of them fit this mold. This sort of funneling through ever more elite positions on the way to the top has produced what some have called—aptly, in my view—a judicial monastery.

Today’s monastic Court may produce more erudite opinions. Certainly it produces more lengthyopinions. But one can argue whether it produces better ones, or at least, whether it reaches better decisions. A less cloistered Court—one that had a bit more experience with, say, elected government, or with business, or with state government—might approach some issues differently, and might have a somewhat more restrained view of its own power and prestige. It might even be, perish the thought, a bit more humble.

And what’s true of the Supreme Court is true of the lower courts as well. Why should we demand a set career path for district judges, or court of appeals judges? Again, isn’t diversity of experience a good thing?

Let’s focus on the district courts for a moment. Not without reason, some critics call the federal district bench a retirement home for prosecutors. When you fixate on number of cases tried, it should not be a surprise if that’s what you end up with. Because as we all know, in modern legal practice, criminal cases sometimes go to trial, whereas civil cases almost never do.

Again, don’t get me wrong. I think it’s a good thing to have former prosecutors as judges. But what I don’t think is a good thing is creating a system that preferences a certain type of background over others. And that’s what I worry we’ve done, or at the very least, are moving towards.

We should not penalize civil litigators who do right by their clients by settling. In some ways, a civil case that goes to trial is a failure, as it means the parties failed to find a reasonable middle ground to escape continued litigation costs. Nor should we penalize corporate litigators who, because of the nature of their clients, almost never take a case to trial. Yet that’s what happens when we fixate on trial statistics

To be fair, there are some types of civil cases that still go to trial. Personal injury cases are an example. Medical malpractice cases are another. But I think we can all agree that personal injury law and medical malpractice law are not the only backgrounds we should value in civil litigation.

At the end of the day, motions practice and discovery, not trial, is the heart of modern civil practice. It’s also the heart of modern judging, at least at the federal level.

In preparing this talk, I had my staff look up the average number of cases tried per judge last year in the U.S. District Court in Utah. The answer was two-and-a-quarter. That number rises slightly to three-and-a-quarter if you exclude senior judges.

Contrary to the popular image created by television shows like Law & Order, modern judges—at least at the federal level—do not spend their days presiding over trials. The bulk of their work is deciding motions and moving dockets along. Sentencing takes a fair amount of time, too. Trials are further down the list.

This is all a long way of saying that what we look for in our judicial nominees needs to match the realities of modern practice. It also needs to account for the fact that having judges with a variety of experience is a good thing.

By all means, let’s have former prosecutors as judges. Let’s have some personal injury and medical malpractice lawyers sprinkled in, too. But let’s also have civil litigators and corporate counsel and academics and legislators.

Indeed, I think that some of the most valuable experience a judge can have is experience in the legislature, whether as a legislative counsel or as an actual legislator. Federal judges are creatures of statute. They’re created by statute, their jurisdiction is governed by statute, and with the exception of state common law claims heard in diversity, and a relatively narrow swath of federal common law claims, their job is administering statutes. What could be more relevant to the job of interpreting and administering statutes than having ground-level experience with writing and enacting laws?

Justice Breyer served as a counsel on the Senate Judiciary Committee before his appointment to the bench. So, too, have a number of other judges. No doubt they draw on these experiences frequently as they review statutes and give effect to Congress’s words. They would be wrong not to.

So let’s not think that only one type of experience is relevant to being a good judge. Not every judge should be a trial lawyer.

An academic who has spent years identifying and working through failings in current law, or a corporate attorney who has seen firsthand how judicial decisions impact the business climate, has valuable perspectives to contribute. We should be humble enough to recognize that others who have had different experiences than we have, and whose legal careers have followed a different path than ours, can still make outstanding judges.

Boning up on the federal rules is easy. Treating litigants fairly even when they’re unsympathetic, keeping personal biases out of the courtroom—that’s the real work.

To reiterate my main point, what matters most is character and ability. I don’t want a judicial monastery. I don’t want a federal bench filled with judges who all have the same background. The ABA may have its own ideas about what type of experience is or is not important, or what sorts of jobs nominees need to have on their resume to check the box. You show me a nominee who is fair, who is honest, and who is going to work their tail off to make sure all litigants before them get a fair shake—that’s the nominee I want on the bench.

The ABA can have their trials. I’ll take the traits that really count.