The intense relationship between judicial and political power in the United States of America

The Foundation for Research in Law and Business covered on September 6th the peculiarities of the American judicial power and how it is related to the political power. To do so we enlisted the help of Federal Judge Edward Charles Prado and Martin Pinales, private criminal lawyer from Ohio.

Prado is a federal judge in the Appeals Court for the Fifth Circuit, and presides over the states of Texas, Louisiana and Mississippi- there are a total of twelve circuits-. His circuit is composed of 17 judges, and every month they are divided into different groups of three in order to supervise different cases.

Judge Prado was a state attorney, public defender in the federal system, and, during eight months, in 1980, a federal judge in Texas. It is important to mention that in the American legal system there is no specific preparation needed to be a judge: any lawyer or state attorney may be named so. Prado highlighted that in the United States state judges are elected democratically, unless in case of emergency, and he recalled that he lost on his election day. “The politician who elected me substitute was from the Republican party: I was the first judge appointed by a republican in over 100 years in the city, where the Democrats control all the judges”. In 1981, President Reagan, from the Republican Party, named him Head of the US Attorney’s Office of the West District of Texas (there are 94 districts). “I was in charge of over 100 lawyers”. In 1984 Prado was named first instance federal judge in that same district, a lifelong position for which he had to obtain the Senate’s support. He remained in that position for over 19 years, until George W. Bush appointed him for his actual position, the Appeals Court, which is also a lifelong position. 

Unlike state judges, who are elected democratically for a four-year mandate, federal judges are elected for lifelong mandates. It is extremely bizarre for a federal judge to be appointed elsewhere; it has happened less than 10 times. However, there have been 30 or 40 who have left voluntarily before any charges were set against them”. The state, democratic, system has its advantages and its flaws. In the latter category, “The people who vote often do not know the qualifications of the candidates, so they vote in favour of the popular names, of the judge from the Party the voter sympathises with”. But the Politicians like this system he says, “Because if a judge is not considered to be good, he/she can be taken from office each 4-year period”. In any case he stated, “the majority of state judges are good, and the best state judges are elected for federal judge”. In the federal system, if a judge isn’t good, “It is almost impossible to throw him out of office. He would have to commit a crime for that to happen. In exchange, we have total independence to make decisions. We do not have to please anyone. There are advantages and disadvantages to both systems”. Prado emphasized on the importance of the appointments of federal judges by US presidents. “Presidents are in office for four or eight years, but their influence lasts for decades. They tend to appoint people that think like them”. Right now, he said, President Obama from the Democratic Party is trying to appoint several judges, but the Senate, which is primarily made up of republicans, is preventing it. “In the Fifth Circuit there should be 17 judges, but two have left so we are now 15. They will not appoint anyone until there is a new president”.   

After Judge Prado’s intervention there was a colloquium with all the attendants and he answered questions asked. 

Several questions were raised such as if there were any real differences between civil and criminal judges in the US, to which the speaker answered that “at state level there aren’t any specialisations, at state level it depends on the city: if it’s big, there are specialists. At the federal level, there are no distinctions, at state level there are some exceptions such as Texas where there are two Supreme Courts, one criminal and one civil. The majority, Ohio included, only have one Supreme Court”.

There were also questions regarding the judge’s independence from the party that appointed him/her, and if anyone can veto them based on that. Judge Prado commented that “the appointment is political, but after being appointed a judge cannot intervene in political matters of any kind, he must watch his acquaintances, which organisations he/she decides to get involved in… I have friends in both parties but cannot go to their events”. “I cannot say that our decisions are politically unbiased, but for example, last week we gathered at the Appeals Court, three judges from different parties, and in the 20 cases we reviewed we were all in agreement”, he continued, “Sometimes there are cases of great political weight, such as a law passed on by republicans and approved in Texas that made it obligatory to present an ID card with a picture in order to vote. People usually use their driving license, but those of poorer backgrounds, often Latino or African American, don’t always have one, so a query was filed claiming the law was discriminatory towards these ethnic groups”. “In First Instance they claimed it was discriminatory, and against the Constitution. All 15 judges of the circuit had to meet and the result was 9 to 6 in favour of the sentence of the First Instance judge. The 6 judges who opposed were all republican but of the 9 in favour, 6 were democrats and 3 republicans” he pointed out. Furthermore, during the appointment process of a federal judge in the Senate, lobbies can give their opinions on candidates. “If a candidate is known to have political connections, it is harder for that candidate to be appointed”. "In any case, the public have faith in the system. In the case Bush vs. Gore during the elections of 2004, it was decided with 5 votes in favour and 4 against that is wasn’t necessary to repeat the vote counting process in Florida. The 5 votes were republican and the 4 other were democrats, and even though half the nation didn’t like this decision they accepted it.”

“Jurisdictional matters” were also reviewed, especially with regards to whether cases should be managed as a state or federal level. To which Prado had to add: “in order for a case to reach a federal courtroom a federal law must exist. Robbing a national bank, for example, might fall under state jurisdiction as it is a robbery, but it also falls under federal jurisdiction. In such a case both state and federal attorneys – as judges are not instructors in the American system- must reach an agreement, and given that the parameters for a trial are different in both legislations, they may opt for those in which it is easier to defend their cause”.

Regarding matters on punitive damages sanctions, Prado said that “such actions must incur sufficient damages for the accused to change the way they act, but not big enough that they have to shut down, in the case of companies.” There were also questions regarding the teams, to which Prado answered that both federal and state judges had teams of law clerks that work with them for 1 or 2 years. Prado himself has a team of 4 clerks which he selected “out of 500 applications”. "Throughout my career I’ve worked with over 75 clerks, some were teachers, other lawyers, judges, attorneys… One has quit the law to produce beer” he added with a laugh. Likewise, he added, "judges count with research teams that, once the jury has declared the accused innocent or guilty, they study the life of the condemned- alcohol related problems, drugs, criminal history-, in order to decide what the sentence given will be. The death penalty was at the centre of another question, Pinales explained that “it is being slowly eliminated, for different reasons, one of which is that a death sentence proceeding costs the US $750,000 - a life sentence costs $300,000-, and we’d rather divert that money to other areas, such as schools. Furthermore, in certain occasions it is discovered before the execution that the accused was innocent. Many cases have their basis on witness testimonies.” 

Prado and Pinales said that most cases in the US are resolved over agreements between the defence and the attorney in charge. “A judge has 4 or 5 jury trials per year” said Prado, “that each usually lasts about one week. The Judge can choose not to accept the deal offered by the attorney, but as he doesn’t know the proof held by them against the accused, he normally accepts the deal almost every time”.  Anyhow, “given that judges don’t instruct, whenever the State loses a case all criticism goes to the attorney”. 

There were questions regarding who judged the judges.Within the federal system there exists a Board whose number of judges depends on the size of the population of the Circuit Court. The 5th Circuit is composed of 8 First Instance judges and 9 Appeals judges. There are other boards with different numbers”,  Prado explained. “Anyone may place a complaint against a judge; it is presented to the president of the Board, who is also president of the Circuit Court, and he/she will appoint a special commission”. The council decides whether the judge is guilty or not, “but given the lifelong position of the state attorney, a heavy sentence cannot be imposed. He can be privately or publicly reprimanded, and given a leave of 90 days, for example; in greater cases, and impeachment-destitution process-, so that it reaches Congress and he can be thrown out of his position”.  There is a group of judges who specialises in ethic matters in Washington DC to which one can send queries like: “I am a member of a club who does not accept people of colour”.

Prado, now 69 years old, highlighted that at the age of 65 “a judge may retire, earning the same salary. Why do we stay? Because we like the job, the responsibility, the power, the honour.”