It is said that one page of history is more important in explaining the law than ten thousand pages of logic. One thousand years ago, the Court of Common Pleas was formed in England for commoners to sue each other if the matter did not involve the King. There were two other major courts involving law or equity which created quite a complicated system which benefitted only the lawyers. In 1873, all three English courts were merged into one court of High Justice, but different divisions handled different kinds of disputes. The colonies in North America loosely followed suit until American jurisprudence merged into one court of law and equity. Each state has their own version of these courts and lawyers have to be familiar with how the system works if they want to benefit their client.
With the advent of the internet, a “sleeper” court which always lurked in the background of legal jurisprudence leaped into the foreground. It is called the Court of Public Opinion, or as I call it, the Court of Common Please. The media has everything to do with the creation and expansion of this Court. Ever since the murder trial in the case of California vs. O.J. Simpson, the public has seized on this sort of public spectacle as a form of entertainment which was delivered nightly to our TV sets and enjoyed tremendous ratings. It is a form of instant gratification for the general public, and crafty lawyers have used this publicity in subtle forms to advance the case of their clients.
A case in point is the recent public hearings held by the U.S. Senate Judiciary Committee on the confirmation of Brett Kavanaugh for Associate Justice of the U.S. Supreme Court. Admittedly a quasi-legal matter, it was just as hotly contested and bitterly fought as any legal proceeding. As I watched the melodrama and grandstanding by all parties concerned, it occurred to me that this was just as bloody and grisly as any ancient gladiatorial contest. Decorum was the first casualty dragged unceremoniously from the arena. The one thing that stood out to me was that everyone, except Kavanaugh, seemed to have one eye on the TV cameras and were posturing for the audience they knew was watching. It certainly says something to the casual observer that Kavanaugh sent his young daughters out of the room because he did not want them to observe the wild-eyed frenzy of his proponents and his opposition.
The mutation of the political process of selecting a Supreme Court Justice into such a circus is troubling and alarming. As lawyers, we need to pay attention to this because it will soon be on our doorstep. Are elections really the best way to select local judges? Will these election campaigns turn into such bloody affrays? If the politicians who have the responsibility to confirm US Supreme Court justices have stooped so low as to play to the cameras, it makes a joke out of the whole process. Regardless of whether Kavanaugh is confirmed or not, this will drive qualified individuals from the judicial arena because no one in their right mind would subject themselves to this abuse. The Court of Common Please has made a mockery of the judicial selection process. I was wondering if what I was watching was some form of Saturday Night Live version of the confirmation process. I hope that the legal profession will take note of what is happening to those who volunteer to become judges and consider guidelines to make the process what it once was, dignified and professional.