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We’re seeing two trends in how judicial posts are filled, and neither is good.

The state court bench is moving away from the tradition of judges having been the senior attorneys in a community. Having practiced law for several years, they were seasoned, tested and wise. But younger lawyers are now running, and the political parties, who focus only on winning, aren’t concerned about qualifications.

In a survey conducted by the Columbus Bar Association, 429 attorneys rated the performance of Franklin County’s 23 common pleas judges in the general and domestic divisions on their objectivity, temperament, legal knowledge, quality of opinions, timeliness and sentencing.

Of the eight incumbents running this November, four were rated lowest among all 23 judges and had less than 10 years experience when taking the bench.

The CBA’s judiciary committee also rated these judges, using a more comprehensive list of criteria. The committee’s 21 members, in deliberations that are confidential, gave these four judges five out of five stars.

The reason for these different assessments is not apparent.

The criteria for serving as a state court judge are minimal. A candidate must have at least six years experience as a lawyer and be less than 70 years old when sworn in.

Never tried a case? No problem. Minimal time in a courtroom? Also not a problem. Have a recognizable last name like Brown or O’Neill? Step right up.

The federal bench is thought to have superior talent overall, if for no other reason, federal judges are appointed by the president and screened by the senate. They’re usually more senior attorneys and, because they’re appointed for life, they’re less susceptible to public pressure.

But politics is starting to dominate the process. The replacement of Justices Antonin Scalia and Ruth Bader Ginsburg are stunning examples of the process gone wrong. On top of that, inexperienced lawyers are being appointed.

We’ve seen nominations of lawyers who had no business being a federal judge. Two examples are Matthew S. Peterson and Brett Talley who were nominated to be district judges in 2017. Peterson had never tried a case, never conducted a deposition (the questioning of a witness, under oath, in a non-courtroom setting) and knew virtually nothing about trial and evidence rules.

Talley was just 36 years old when nominated and had never tried a case.  Fortunately, both men withdrew their names from consideration.

Judge Aileen Cannon was appointed to serve as a district judge in November 2020. She had 13 years of lawyering behind her, but minimal trial and civil law experience. Her inexperience was manifest with her handling of the case concerning the classified documents former president Donald Trump stored at Mar-a-Lago residence. No one has lauded Cannon’s decision from last September. Even former attorney general William Barr called it “deeply flawed in a number of ways.”

Just eight years out of law school, Kathryn Kimball Mizelle, 33, was appointed to the federal bench in 2020. The American Bar Association deemed her not qualified because of her lack of trial experience. But Mizelle had the right pedigree. She had been a member of the Jones Day law firm, which has close ties to the Republican Party.

What to do? Create and steadfastly abide by a set of objective criteria. A minimum number of years as a trial lawyer—not government agency law, not election law, etc.—is a good place to start.

Somewhere between 15 and 20 years makes sense. It’s not just legal experience that matters, but when rendering decisions that affect lives in both civil and criminal matters, life experience is just as important.

Strong endorsements from opposing counsel in cases the candidate handled would reveal much about a candidate’s ability. And a minimum number of trials should top the list.

We determine what kind of judiciary we have by the standards we establish.

[This post was originally published on October 16, 2022, in The Columbus Dispatch.]

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Jack D’Aurora writes for Considerthisbyjd.com

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