Samuel C. Stretton.

Trial and appellate experience should be important when selecting a judicial nominee.

With all the commentary about the U.S. Supreme Court nomination and lesser commentary about U.S. Courts of Appeal and Federal District Courts, what should be the standards for selecting a good jurist?

The modern way of selecting judges is doing a terrible disservice to the judiciary. At county and state levels where there are elections, massive amounts of monies often determine a judicial race. The federal appointment system, unfortunately, is not really a merit system but a “who you know” system where political connections and monies still play a major role. On the other hand, politics should not necessarily have the dirty name that it does. In essence, political organizations promote and organize activities by various citizens, selecting candidates of their choice and espousing various viewpoints. That is the essence of democracy and what the First Amendment is all about. The judiciary and particularly the U.S. Supreme Court has to appear to be above political consideration. That is why the U.S. Supreme Court has always maintained a favorable and respectful rating among voters and citizens. The court has always been perceived to be above politics. That perception was dealt a significant blow during the U.S. Supreme Court decision in the 2000 election and recent political maneuvering over the last three years has caused further damage.

Failure to allow President Barack Obama's last Supreme Court appointment a hearing was a purely political decision that eroded trust in the institution. Suggestions that the current Trump administration's nominee should be defeated is again being driven by politics. That's what happens when the Senate starts to play a political game as we saw with the Obama nomination and now with the Trump administration.

Let's get to the basics. The president is entitled to select a nominee. There should be great deference to the president's nominee. The president won the election and there should be deference to his viewpoints and his desire to put qualified people on the bench. An opposing party may not like or agree with all of these persons, but their complaint should be diverted to the next election. By opposing qualified choices or not giving them hearings, then the integrity of the U.S. Supreme Court becomes an issue. This gives credence to discussions that court decisions are now being made politically as opposed to being made through hard and cold analysis of the law.

Another major concern is the attempt to get candidates or nominees for judicial office, such as the Supreme Court, to commit to their position on certain issues. That is just wrong and totally unethical and in violation of Codes of Judicial Ethics. If candidates are going to commit to a position, then they might as well have a robot up there and program the robot with the already agreed to positions. Judging is a much greater art than that. Political leaders and U.S. senators should have more sense and not corrupt the political process by asking such questions and these questions should not be answered by the candidate.

The goal in selection a U.S. Supreme Court justice or federal judge or really any judge is someone who is fair, knowledgeable, competent, and who has a comprehensive understanding of the U.S. Constitution and a sense of history, particularly a history of the United States and a judicial history of the United States. But, there is one other requirement that is often neglected: the candidate should actually have tried some cases and argued some appeals in appellate courts.

In the modern world of the U.S. Supreme Court judicial selections, everyone talks about Harvard and Yale degrees and Oxford post-graduate degrees. Of course, that's always impressive. But, any practicing lawyer knows that after one graduates from law school and gets their first job, no one cares where they went to law school. In fact, most practicing lawyers don't really know the law school that the judge or their opponent went to because it makes no difference. What they do need to know is what kind of a lawyer and person that individual is and how much experience they've had. Only law professors, U.S. senators, and others seem to place great weight on an Ivy League law school pedigree. In reality, that is a consideration, but only a minor consideration. The major consideration is what the attorney has done since he graduated from law school, not where he went.

After all, if someone wants to serve on an appellate court or a trial court, a prior requirement is they tried cases in court. It is not the same as being an umpire or referee, although many of them have actually played the game they are now refereeing. To be a judicial officer, one should be very familiar with the various courts, tried jury trials, tried nonjury trials, and argued appeals in state, federal, and appellate courts and perhaps, if lucky enough, in the U.S. Supreme Court. That sort of broad experience is the essence normally the qualification for a good judicial officer.

But, many of the U.S. Supreme Court justices haven't had that experience. They've had distinguished academic positions or perhaps they were appointed to a high position in the federal government, but they haven't actually tried many cases. In fact, many of them haven't tried any it would appear or if they have it's only been for five or six years. Every trial lawyer knows that it takes about 10 to 15 years to become a good trial lawyer. Someone with five or six years in the D.A.'s Office doesn't qualify with the broad experience that should be expected on these highest courts.

That's the problem with the current nominee. His background is impressive, but how many cases has he tried and how many cases has he argued? That ought to be the major factor in consideration in the nomination process.

The last person who tried serious criminal matters and homicide matters or Civil Rights matters was Thurgood Marshall. Chief Justice Earl Warren tried cases for many years when he was a district attorney and Attorney General. How about the others? Some have had Supreme Court arguments, but how about actual trials? How about actually representing someone who wasn't a billion dollar corporation through a multimillion dollar law firm?

As a result, there becomes a sort of elitism that really has no reflection on what it means to be a lawyer or trial lawyer, etc. Even the Supreme Court bar is no longer filled with lawyers with their first or second argument who have broad practices and take on causes they feel are just. It now has an elite bar where lawyers have had 30, 50, or 100 arguments, but rarely, if ever, tried a jury trial.

Without having significant trial and appellate experience, the judiciary loses something. The diversity of practice, the understanding truly of the mechanisms of a trial, the understanding of the impact of evidentiary rulings on a jury, the understanding of appellate arguments, and the understanding of the human element is critical. None of that really exists on the U.S. Supreme Court. There are brilliant people sitting on the court, but it would be a far better court if each of the justices could at least said they tried 20 or 30 jury trials of a civil and criminal nature. It doesn't appear that any of them could say that, and the newest nominee certainly can't.

Therefore, the focus of these hearings is wrong. That focus is a political one where If we don't agree with your position then we oppose it. That's now the way judicial nominations should be reviewed. Instead, trial and appellate experience, competence, and fairness should be what is important. Perhaps the old-fashioned standards of “have you tried a case?” should be considered.

Any experienced trial lawyer would not, in a major case, ask a lawyer with no major trial experience to try a case if they never tried a case before. The reason is because the person wouldn't be competent to do so. The lack of trial and appellate experience should be discussed and that ought to be a major consideration in all future judicial nominations.

Lawyers cannot engage in dishonesty, fraud, deceit or misrepresentation.

I want to pose as an insurance agent and go to a neighbor's house to find out what is happening in my client's case where the neighbor is being sued. Can I do that as a lawyer?

The answer is no. Rule 8.4(c) of the Rules of Professional Conduct specifically states that “it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”

Rule 8.4(c) is a 24/7 rule. A lawyer cannot use deceit, fraud, misrepresentation, or dishonesty in their professional life nor in their private life.

Therefore, for the lawyer to pose or get someone else to pose as a witness or approach someone to get information using a different identity would be a form of deceit or fraud. Some people have asked can the lawyer participate in police activity where the lawyer is asked to act in some undercover type of role. Again, that would violate the clear language of Rule 8.4(c), which has no exceptions.

Some states do have exception, at least for covert police work. The Supreme Court in Oregon, under Rule 8.4, has another section that states as follows: “It shall not be professional misconduct for a lawyer to advise clients or others about or to supervise lawful covert activity in the investigation of violations of civil or criminal law or constitutional rights, provided the lawyer's conduct is otherwise in compliance with the Rules of Professional Conduct.”

One of the reasons for this strong all-encompassing rule prohibiting dishonesty is that integrity is the essence of being a lawyer. If the integrity of the legal profession becomes an issue, then public confidence in the profession would decline greatly and the independence of the profession could be at issue.

Some commentators have worried about how broad Rule 8.4(c) is and whether there may be First Amendment implications. But the purpose of the rule is a good purpose and it really is because every lawyer has to be honest. When one goes to a lawyer, they have to be able to feel they can trust their lawyer and what the lawyer says is accurate. If it's not true, then the lawyer can face potentially serious discipline to the extent of losing their law license for being dishonest with a client or showing dishonesty or fraud in any aspect of their life.

Perhaps some sort of covert activity might be written into the rule for a valid exception, but there should be some serious thought before that is allowed.

For instance, recent articles about the president's lawyer revealing taped conversations were very upsetting. Even if the taping in New York was permissible (in Pennsylvania, it would not have been since both parties have to consent and if they don't it's a felony of the third degree), the fact a lawyer is taping a client without them knowing is an act of dishonesty and prohibited. This can have some serious implications for federal prosecution if a lawyer is being charged with a crime and agrees to act in an under cover fashion with co-defendants and co-conspirators to get them to provide incriminating information. Under the rule, there is no exception and the lawyer could be severely disciplined again. This is not often thought about when criminal investigations are ongoing, but it can create a serious problem. But, as of now, Rule of Professional Conduct 8.4(c), which has been in effect since 1987, sends a powerful message to the legal profession that honesty and trustworthiness is the essence of being a lawyer and deceit, fraud, misrepresentation, or any form of dishonesty will not be tolerated and will be treated as a serious disciplinary violation with potentially serious consequences.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.