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Wednesday, May 10, 2006
Luttig soars!
By now you've probably already heard from Eugene, Orin, Ann, Gordon, and Dan Filler that Judge Luttig of the 4th Circuit, and great UTR fame, has tendered his resignation letter to POTUS. Eugene also noted, via Stuart Buck, that Neil Gorsuch, a former partner at my old firm when I was there, has been nominated to the 10th Circuit. Both reflect patterns of revolving door careers: one spent a long time in private practice before heading into public service, while the other spent a lifetime in public service before cashing in to send his kids off to college. (I agree with Ann, who discerns that the subtext of the Luttig resignation letter is: Jeepers, no SCOTUS seat in sight and now and I've got kids in high school fast approaching college.)
In the law prof world, such revolving is a bit more unusual--though Geoff Manne's imminent (?) departure to Microsoft may trigger inspire a wave of departures to other companies deemed, to use Luttig's phrase, "American icons." I can think of a few legal academics now on the bench or who did a couple years in the Administration, but not too many who decided to follow the money. (And Geoff, I'm not suggesting that you're headed to Microsoft just for the options...) But any conjectures as to why this pattern? After all, most law profs and federal judges are paid roughly within the same ballpark (100-200K). And presumably they're all trying to get their kids in to college at the same relevant rates.
Another possible theory: judging gets boring after 15 years. One comment on Orin's post speculates that "It’s been my understanding for a while that Luttig doesn’t love being a judge. He’s very close to his family and was upset when he was required to have his chambers in the new Alexandria court house. He didn’t like the different social obligations that came with the judgeship. He obviously had been groomed to be a Justice, and I think that probably played a part in this process, but I think Luttig was tired of being a judge."
If that's the case, we can posit that Souter and Thomas will retire soon--both are reported to be unenthusiastic about the job they occupy. But that was before the new guys started and I'm not sure if Alito and Roberts have cheered them up some. Rank conjecture, anyone?
Posted by Dan Markel on May 10, 2006 at 06:03 PM in Law and Politics | Permalink
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Comments
Quitting out of boredom is not unprecedented.
Another Fourth Circuit judge, James Marshall Sprouse, simply retired, rather than continuing to work as a senior judge, back in 1995.
As I recall, when I was clerking on that Circuit (in 1997-98, for Sprouse's replacement, Judge M. Blane Michael) I heard from staff at the courthouse that Judge Sprouse retired because he simply was no longer interested in the job -- or perhaps, that he took other employment (I forget which). Of course, it was rumor I cannot confirm -- but it raises the interesting (and, to me, somewhat shocking) possibility that judging on a federal court of appeals can grow old.
Of course, Sprouse had no SCOTUS prospects, and was much older than Luttig, 70 or so if I recall correctly....but the precedent is there.
Posted by: Joe Leahy | May 10, 2006 6:32:17 PM
Ann is wrong - while the letter mentions his kids and college, money is not an issue at the Luttig household. His late father made a major, major bundle in a number of entrepreneurial ventures, and the little Luttigs will be able to go to college no matter what the judge does.
My guess is that it is about new challenges. Anyone who is surprised that appellate judging can be boring has never clerked for an appellate judge. Reading briefs that present extensive arguments on narrowly drawn questions presented has a certain monkish appeal, but it's nothing compared to life lived large on the streets of the City With Big Shoulders. Luttig, who has very little experience practicing law, has a golden opportunity to escape the appellate ghetto and help a major corporation formulate its strategic responses to both legal and business issues. When he's done straightening out Boeing's legal messes, maybe he can go run another major corporation or run for office. While he may never get that Supreme Court appointment he wanted so much, living a bit of real life outside the beltway and outside the world of appellate briefs would only make him a much better justice if that opportunity ever came.
Posted by: anon | May 10, 2006 7:25:18 PM
He got passed over for the Supreme Court three times during this administration. He read the tea leaves and figured that he probably wasn't going to become a Supreme Court justice any time soon. So he took his ball and went home. It's that simply. I mean, does anyone *really* believe that Luttig would have resigned from the bench if he thought that (1) an opening on the Supreme Court was imminent and (2) he was next in line for it? Of course not.
This is a guy who got put on the Court of Appeals before he finished puberty, so it shouldn't be shocking that he didn't consider judicial office to be the terminal leg of his life in the law. It goes to show why the Senate should be doubly careful about confirming very young careerist lawyers to the appellate bench. (I'm thinking of Brett Kavanaugh.)
Posted by: another anon | May 10, 2006 8:25:43 PM
With respect to the last comment, let me ask, in a friendly way -- *how* does the Luttig story, assuming your reading is correct, or the Kavanaugh appointment, show that the Senate should be "doubly careful about confirming very young careerist lawyers to the appellate bench?" I think my posts on this blog demonstrate my wariness concerning careerism and its effects in the law and elsewhere. But I'm not sure these stories illustrate that the costs of appointing young careerists to the bench outweigh the benefits. Isn't it at least potentially a *good* thing if appointees to the bench don't consider judicial office the highest, and the only, thing to aim for? If they have other career choices, isn't it possible this will enhance their independence on the bench? Which is better -- a young judge who views promotion within the judiciary only one of many options available to him or her, or an older judge who either thinks that the only available route of promotion left to him or her is to a higher court, and so has an incentive to curry favor with the appointing administration, or who thinks that promotion is unlikely and instead seeks to consolidate power on his or her terminal court and get embroiled in local judicial politics? I make no assumptions about the answer to these and many other relevant questions. I'm simply not convinced that Luttig or Kavanaugh teach us lessons about the dangers of appointing young careerist lawyers to the bench.
Mind you, there are other dangers of appointing such individuals -- that they lack the requisite experience and experience-based judgment, or that they have come to early notice by being loudly or quietly partisan, or that they have come to early notice by being so ideologically hardened that they are unlikely to "learn" on the bench, whatever that may mean. These dangers are worth taking quite seriously. But they don't seem to me to be implicated by the prospect that some of these young turks will leave the bench rather than enter senescence dressed in judicial black.
Posted by: Paul Horwitz | May 10, 2006 8:41:35 PM
See, I just cannot understand the mentality of someone who walks away from an appellate judgeship. I mean, it's madness. As a commenter points out above, it is probably the point in the universe furthest from "life lived large on the streets of the City With Big Shoulders," which is probably the single most attractive thing about the job. Not that there aren't other very attractive things about the job: the life tenure, the substantial salary (four times the American average), and of course, the job itself - "Reading briefs that present extensive arguments on narrowly drawn questions presented." The idea of abandoning that gig for private practise or industry is just weird (and honestly, for a man of Souter's reportedly bookish proclivities, I suspect even weirder).
Sure, the court of appeals isn't the Supreme Court, but it's a nice gig. I think the only downside from my perspective would be the requirement to travel regularly to (in my case) Chicago. All in all, I think it's pretty sad, and really does grave injury to his reputation. Different strokes for different folks, but I find it hard to believe that someone goes to Boeing for the intellectual challenge.
Posted by: Simon | May 10, 2006 11:42:33 PM
Anon says: "Anyone who is surprised that appellate judging can be boring has never clerked for an appellate judge."
I'd take that boredom over my day job -- any day job -- ever. And I did clerk, on Luttig's court. It would never get old to me...!
"Reading briefs that present extensive arguments on narrowly drawn questions presented has a certain monkish appeal, but it's nothing compared to life lived large on the streets of the City With Big Shoulders. Luttig, who has very little experience practicing law, has a golden opportunity to escape the appellate ghetto and help a major corporation formulate its strategic responses to both legal and business issues."
Sounds like someone who's never worked at a large law firm! :)
Sure, it is always good to be the client, better than working at a firm. But c'mon: the practice of law, unless you're a trial lawyer, is far more trival and trite and than being an appellate judge.
If he was looking for a challenge, Luttig should have tried to develop his comedy routine -- as Scalia has done over the years (laughs).
Posted by: Joe Leahy | May 10, 2006 11:52:49 PM
In response to Paul Horwitz:
You might have a point if the careerist were indifferent between judicial and non-judicial office such that he wouldn't care about the potential blowback from any particular judicial decision. *That* attitude would bolster judicial independence.
But that isn't how the careerist thinks. The careerist considers his current judicial office to be merely a stepping stone to a greater judicial or non-judicial job. He will therefore bend and twist the decisionmaking in his current judicial office so as to reach the next brass ring--whether the brass ring is a higher bench or a non-judicial job--by pleasing the masters (i.e., non-judicial political actors) who determine his next promotion. The careerist is therefore a threat to judicial independence.
To give an example, Justice William O. Douglas's decisionmaking was affected by his desire in the 1940s and 1950s to run for the presidency. Judge Irving Kaufman was a notorious attention grabber who successfully got himself promoted to the Second Circuit by sentencing the Rosenbergs to death. To come back to the more recent past, I think that Luttig recently shaped his decisions to contrast himself with J. Harvie Wilkinson, obviously in the hope that the White House would pick him and not Wilkinson for the Supreme Court.
Once the careerist realizes that his efforts at self-promotion through his judicial decisions are unsuccessful, he will lose interest in his current judicial office (as Douglas did in his last 10 or so years on the Court) and the quality of his judging collapses completely. Rather than a smart and energetic judge who shapes the occasional controversial opinion to please key political actors, he morphs into a sloppy and indifferent judge who no longer takes any interest in his job. That kind of judge further undermines the quality of legal justice.
So, I stand by the assertion that Senators should take special care to keep rank careerists like Luttig and Kavanaugh off the bench. They won't be independent. And if their lack of independence isn't rewarded, they'll stop giving the necessary attention to their judicial office.
Posted by: another anon | May 11, 2006 1:36:25 PM
The intellectual challenges of appellate law are like checkers; the intellectual challenges wrapped up in being a good general counsel are like three dimensional chess. Appellate judges flip a toggle switch between opposing and well defined options. General counsel have to anticipate which of a million hidden facts and a dozen emerging legal themes will prove to be important, or which of a half dozen strategic approaches will prove correct in a world where facts are not fixed in a legal record but can still develop in unexpected ways.
Being a big law firm associate is excruciatingly dull, and being a big firm partner with a narrow and repetitive specialty is little better. On the other hand, being a general counsel with a sufficient budget and interesting challenges can be as intellectually stimulating as any legally related occupation.
As for those fixated on tenure or lifetime appointments - I really feel sorry for you. Life is not meant to be lived as a loss avoidance exercise. Sit outside one night, look at the stars, and imagine what your life could be like if you worried less about security and thought more about all the possibilities that are open to free men and women.
Posted by: anon | May 12, 2006 8:39:54 PM
Out of curiosity: what makes you think Thomas doesn't like being a Supreme Court justice?
Posted by: Ted | May 24, 2006 9:20:43 AM
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