President Donald Trump didn’t tweet about the 52-page opinion that my father, U.S. District Court Judge Peter J. Messitte, wrote last week regarding the definitions of the foreign and domestic emoluments clauses in the Constitution. But it is unlikely that Mr. Trump is very happy about the outcome. If the profits from the Trump International Hotel are ultimately deemed to be an “emolument,” the president may have another major legal problem on his hands.
When I read my dad’s decision, however, I can clearly see how his background and experience informed his conclusions. And that’s important because it’s precisely those kinds of considerations that ought to inform how we select our Supreme Court and federal judges for lifetime appointments to the bench.
Public service runs deep in my family. My father’s father came to Washington in the 1930s after law school and went to work for the Roosevelt administration during the heart of the New Deal; his mother worked for the National Institutes of Health. Together, they raised their family in Bethesda and Chevy Chase, sending their children to Montgomery County Public Schools, where my father and his two siblings had plenty of friends whose parents worked for the government, too. Working in D.C., hokey as it may sound, was never seen as a way to “gain” or seek “advantage,” but rather, as a calling and a way to give service back to the country.
My father majored in American and Latin American History at Amherst College, and, after law school, he and my mother joined the Peace Corps and served two years in Brazil, where he taught law and coached a soccer team, and my mother helped run a health care clinic in Sao Paulo. They returned to the United States, and my father opened up a private practice in Maryland, where, due to his fluency in Spanish and Portuguese, he started representing non-English speaking clients. He became a Montgomery County Circuit Court judge and later, in 1993, President Clinton appointed him to the federal bench at the soon to be opened Southern Division Courthouse in Greenbelt.
Even though the emoluments case may be the most far-reaching constitutional case of his more than three decades as a judge, my father has heard thousands of cases that have an impact on Maryland: He’s put MS-13 gang members behind bars; adjudicated part of the collapse of the savings and loan industry in the state; and ordered the end of mandatory busing in Prince George’s County, effectively concluding a government effort to desegregate the schools. He’s had cases reversed by the Court of Appeals in Richmond and, despite being a lifelong Washington sports fan, once declined to use the name “Redskins” in his courtroom. He avoids going to partisan political events and has limited outside investments. Every year he hosts his former law clerks for a crab feast in Southern Maryland.
My father took senior status a decade ago. He has, however, maintained a steady docket of cases, led seminars at American University's law school and stepped up his pro bono international judicial work with USAID and the State Department, particularly in Brazil, where last year President Michel Temer awarded him the Order of the Southern Cross for a lifetime of service, the highest honor that can be given to a foreigner.
Trying to discern how a prospective judicial nominee’s background and professional experience might influence their decision-making on the bench will be more critical than ever in the next few weeks as Judge Brett Kavanaugh begins his hearings in front of the Senate Judiciary Committee for a seat on the Supreme Court. The idea, somehow, that all judges are simply impartial umpires, calling out the balls and strikes, is naïve and ultimately designed to deflect a more thoughtful response to the nuances of a nominee’s judicial philosophy. The oft-cited baseball analogy discounts the life events, case history and human nature that go into how a judge sees the world. The Senate (and the media) must get beyond where prospective jurists went to college and law school and whom they clerked for when they were in their 20s, and tease out how their experiences have impacted their judicial philosophy and shaped their understanding of the rule of law. Only then will Americans feel confident that their judges will be able to uphold the Constitution the way they would want them to.
Zach Messitte (email@example.com) is the president of Ripon College in Wisconsin where he is also a professor of politics and government.