199. The deserving

A law school classmate briefly worked for one of those thousand-lawyer mills that are regularly featured in the trade press.  When I made some comment about the number of hours such places require their associates to bill, he said, "The thing is, after a while they start believing they really worked all those hours!"

Now, admittedly, most of the big law firms, even those who have slimmed down their letterheads to the currently fashionable two-names-without-a-comma, don't go quite so far as James O. Mill, the retired Boston police officer who moved to New Hampshire and started a lucrative sideline running an investigations business.  According to the Massachusetts Supreme Judicial Court,

During 1993, 1994, and 1995, the defendant spent every business day at the Middlesex Superior Court, either in the court room assigned to clerk-magistrate Joseph Marshall or in Marshall's office. Beginning in April, 1994, Marshall handled most of the appointments of counsel for indigent defendants and motions for investigation funds. When the designated bar advocate was not in the courtroom, Marshall would deviate from the master list and appoint one attorney from among a group of four who were typically in the courtroom. Those four attorneys moved for investigation funds in every one of their cases and always retained the services of Mills Investigations. Marshall "rubber-stamped" his allowance of these motions off the record and in his back office where the defendant usually spent three hours a day socializing with Marshall.

For fiscal year 1993, the defendant billed CPCS [Committee for Public Counsel Services] for approximately $107,000 for investigative services. For fiscal year 1994, the defendant billed CPCS for approximately $197,000, representing 5,483 hours of investigative services. On forty-four occasions, the defendant submitted bills with more than twenty-four hours of work attributed to a single day. For fiscal year 1995, the defendant billed CPCS for approximately $359,000, representing 10,057 hours of investigative services. The defendant submitted 211 bills in which he claimed to have worked well over twenty-four hours in a single day (with some days as long as seventy-two hours).

There are 8,760 hours in a year (8,784 in a leap year), so billing 10,057 was pretty impressive.  As I say, I think that would be relatively uncommon among the associates of even the biggest law firm. 

I was reminded of my classmate's comment about the awesome power of self-delusion when I read about a mini-scandal that may have contributed to Conrad Burns' political downfall.  Four days before the election the Billings Gazette ran an AP story that began:  "Republican Sen. Conrad Burns received a $2,000 campaign donation from an attorney one day before recommending him for a federal judgeship five years ago."

The lawyer in question, Sam Haddon - that's "your honor" to you - is a former officer with both the Border Patrol and the old Narcotics Bureau (the DEA, several bureaucratic reorganizations ago).  This made him a natural for a job that consists, to a soul-crushing extent, of ordering the imprisonment of immigrants and addicts - the two categories of offenders that account for 65% of federal prisoners.  But that's not why he's a federal judge today, and every day for the rest of his life. 

Burns' spokesman tried to spin the suspicious timing by changing the subject: "To somehow insinuate that Sam Haddon wasn't qualified to earn his appointment on the merits is absurd."  No doubt Haddon was fully qualified.  But then, even in a state as unpopulated as Montana, with its bar of just 3,000 in-state members, there are doubtless several hundred other lawyers as qualified as Haddon. 

What made Haddon stand out from the crowd - what made his resume shine among the dross crossing a Senator's desk (whatever dross is, exactly, other than a handy cliche) - was his generosity.  As the Gazette reported, Haddon and his wife "frequently donated to Republican candidates and causes, giving $4,000 to Burns' 2000 campaign and thousands of dollars over the years to GOP committees and lawmakers."

The timing of that last $2,000 contribution was unfortunate, and perhaps typical of a soon-to-be ex-Senator with the gift of the gaffe (who else would publicly tell firefighters they did a "'piss-poor job' of battling a fire near Billings"?).  But the pattern of gifts was hardly out of the ordinary.  You don't get to be a federal judge unless you've made yourself useful to your state's senior senator of the President's party, and shovelfuls of money are always useful.  Federal judgeships are the last pure strain of the ol' Andy Jackson spoils system.

When the Supreme Court, a couple years ago, gave the green light to extortion by state judges, Justice O'Connor wrote separately to condemn the entire practice of electing judges.  She concluded: "If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges."

The assumption behind those words is that there's an alternative to judges being conscious of what side their bread is buttered on.  My impression is that appointed judges in general, and federal judges in particular, believe in a fantasy called "merit selection."  In this fantasy, judges acquire power because they deserve it.  Not, for example, because they reliably donated large sums of cash to politicians of the party temporarily in power. 

Nor because they served as loyal soldiers of the state party for years before being on hand when President Reagan needed to redeem his campaign promise to appoint a woman to the Supreme Court.  I'm an admirer of Justice O'Connor.  She was far more grounded in reality than any of the current members of the Court.  Her opinions were consistently coherent - which you might think is damning by faint praise, until you try to read a Breyer or Souter opinion.  But the only influence merit had on her appointment to the Supreme Court was that it allowed her past the initial screening.

After a certain number of years of wielding virtually unlimited power, many federal judges seem to feel a need to justify to themselves why they were touched by the fairy godfather's wand.  The psychological process that makes them want to believe they were chosen on the basis of merit isn't difficult to understand.  Or, as my classmate would say, "The thing is, after a while they start believing they deserved it!"