Appellate Insights

Mar 17, 2016 Laurie J. Hepler
A Grand Transition

Can anyone remember a time when an appellate judgeship has so dominated the news? It’s easy to see why: the stakes are nothing less than the ideological balance of the highest American court for at least the next generation. In an election year, no less.

Appellate Success in California(ASIC) steers clear of politics – but in light of a moment unparalleled in my lifetime, ASIC will also forego the usual strategic and inside advice. Instead, let’s take a minute to appreciate how this public debate confirms that we are – warts and all – a nation committed to the rule of law. Think of the reasons we attach such vast importance to “who will fill Justice Scalia’s seat”:

  • We expect that all lower courts will adhere to decisions issued by the U.S. Supreme Court, except to the extent those decisions can be distinguished — and even then, the lower courts will be subject to SCOTUS review. While of course imperfect, this orderly system has, in large measure, held our country together

  • We expect the new Justice to serve for decades because of Article III’s life-tenure provision, which insulates federal judges from political attack for their decisions, and hobbles improper influence.

  • Neither the Executive nor the Legislative branch alone can make this momentous decision about who will serve in the Judicial branch. They must find some workable compromise – an ingenious feature of our Constitution.

The not-so-practical, but important message: The death of a profoundly influential Justice is a watershed moment that we are prepared for. However messy things get in the next few months (and that could be: “very”), we are fortunate to live in a country that will handle this challenge openly and peacefully.