brainrow

A little more than ten years ago, I was summoned to jury duty. It was an endlessly educational experience.

A jury throws together people who don’t often mix in modern America. My fellow jurors came from many walks of life. We each saw and understood things from our own perspective. When another juror’s perspective was very different from mine, I was tempted to see that perspective as a bias. I suppose my own perspective may have looked like a bias to other jurors. All the jurors took their duty seriously, and we all found ways to get along while we were stuck together.

I was there for three weeks, and sat on two juries, each trying a civil lawsuit. A lawsuit that reaches a jury is unlikely to be a simple open-and-shut case. Those cases are usually settled out of court.

These were not celebrated cases, so there was no thought of sequestering the juries. We wandered around downtown during the long lunch breaks, and went home every evening. But each day the judge gave us “the admonition,” reminding us not to discuss the case with anyone, including our fellow jurors. We talked about sports, music, movies — anything but the case.

There were ten of us in the jury box during the trials: eight regular jurors and two alternates. At the end of the trial, the alternates were sent away, and only the eight regular jurors participated in deliberations.

We were given a series of questions, called interrogatories. Had the defendent done this specific act? If not, we had to return a verdict for the defendent. Had the plaintiff suffered actual harm from the act? If not, we had to return a verdict for the defendent. Had the plaintiff taken reasonable care to avoid that harm? And so on. We discussed each question and voted on it. A jury in a criminal trial must reach unanimous agreement. In our civil cases, we needed 75% agreement to answer each question.

A friend asked whether I had more or less confidence in our system of justice after my three weeks of jury duty. It wasn’t an easy question to answer.

I worried about the biases I had noticed. In each jury I thought there were one or two jurors with a predetermined bias against the party with more money. In one case that was the plaintiff, in the other case it was the defendant. There was a different juror who didn’t seem to understand some particular rule of logic. There were disagreements about the meaning of terms like “reasonable care.”

But those disagreements and rough edges were good, too. Because we jurors saw things from different perspectives, we collectively saw and understood more than any one of us alone would see.

What smoothed out the rough edges was this: we couldn’t reach a verdict without a 75% majority. If half the jurors held a wrong-headed bias, they had to persuade not just one, but two other jurors to join them. If they could do that, maybe they weren’t wrong-headed after all. My confidence in the jury system is based very much on its requirement of supermajorities.

You know, there once was a time when the Senate commonly approved federal court nominees unanimously. That wasn’t because the Senate thought its constitutional duty to “advise and consent” was to rubber-stamp all the president’s nominees. No, it was because presidents understood that federal judges serve for life, and make life-and-death decisions from the bench. They nominated people with excellent credentials, with impressive records of achievement, and without extremist ideologies. It wasn’t too hard to get unanimous approval of nominees like that.

We have a different kind of president now, sending a different kind of nominee. We have a different kind of Senate, too, weighing a “nuclear option” to let them ram through judicial extremists on a straight party-line vote.

How do I know the nominees are extremists? The Republicans can’t find five Democrats to join them to vote for cloture to end a filibuster and bring the nomination to a vote.

How do I know it’s not just the Democrats being partisan? Because they’ve tried to block only ten of Bush’s 214 federal court nominees.

Judges with life-and-death power. Serving for life. Approved by strict party-line votes, over all objections. If you want to undermine confidence in the government of the United States, that’s the way to do it.