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Saturday, July 12, 2008

Professors' non-aggression pact on judicial nominations?

Since Andy Siegel has proposed the "summer parlor game" of speculating about whom President Obama might appoint to the SCOTUS, this seems like as good a time as any for me to promote my perennial hobby horse -- a professorial non-aggression pact on judicial nominations of professors. Here are the terms of the pact: Law profs agree to support any academic appointment to the federal district or appellate bench, full stop. Left law profs will endorse, say, Professor Doug Kmiec for the Ninth Circuit when a Republican occupies the White House; Right law profs will endorse, for instance, Dean Elena Kagan for the D.C. Circuit when a Democrat occupies the White House.

The reason for the pact? Law profs -- literally any law prof -- is likely to be as good as, or even a better than, the typical nominee to a lower court, whose qualifications typically amount to being a Senator's friend or staffer. Yet law profs face an enormous headwind in securing a nomination, because they have paper trails on controversial issues. It does not help that law profs testify against their own when a professorial nominee has particular positions that the profs oppose. But eliminating profs in this manner actually is self-defeating in every sense of the word: It is not as if the professorial nominees are replaced with nominees that are ideologically simpatico . Instead, they are replaced with "blanks" -- nominees with no paper trail and no discernible judicial philosophy at all but fully equipped with "spatial attitudes" that are likely to be just as dangerous to the values and beliefs of the people who opposed the prof that the blank replaced. In the meantime, the bench becomes less articulate, less knowledgeable about the long-term ramifications of the precedents that they hand down, more ad hoc in its reasoning -- in short, less "academic."

I proposed such a pact back when Bush nominated Michael McConnell for the Tenth Circuit, thinking that McConnell's nomination was a spectacularly easy case for Left profs to endorse -- but I got a mixed response. The typical skeptic had one of three objections: (1) Profs are not the only good candidate for a judgeship: Pols are useful too; (2) If I endorse a nominee with an ideology I oppose, what assurance do I have that other academics will endorse nominees whose ideology I favor? and (3) Who cares about doctrinal coherence, anyway?

Here are my reasons for why these are not persuasive objections.

First, the Pols can take care of themselves: We are guaranteed horse-doctors' doses of pols. Donors, staffers, politicians' golfing buddies, state officials term-limited out of a job -- they are the routine source for the district and appellate bench. It is the Prof who needs profs' help, not the Pol.

Second, that's the point of the pact -- to solve the game-theoretic problem of being the first mover.

Third, please, please, please, law profs -- stop the self-hate masquerading as Legal Realism! The notion that doctrinal and policy coherence does not matter lacks even the virtue of being novel, let alone true. Try teaching some of Rehnquist's more murky opinions -- say, Morrison v. Olson -- and then sincerely tell me that reasons do not matter. (By the way, I agree with the result in Morrison - -but would it not be nice to have a theory explaining why, for instance, offices designed to address the narrow problem of Presidential conflicts of interest form a special category of "inferior" officers?) In the interests of bi-partisanship, I could just as easily invoke Justice Brennan's opinion in Penn Central v. New York as an example of a theoretically vapid opinion that has left the doctrine in shambles.

But even if you suffer from self-loathing and care only about results, consider that it might be more difficult for an academic with a coherent legal theory to bend with their "spatial" ideology. My colleague, Rachel Barkow, has documented how Justice Scalia's originalism really does constrain him from adopting pro-government results in criminal procedure cases. The same holds true for Scalia's opinions on punitive damages. Since we are inevitably going to get a nominee whose views some of us will dislike, why not get an ideological opponent whose flexibility is constrained by a legal theory? In short, even self-hating, legally cynical profs should sign my pact.

So -- do I have any takers?

Posted by Rick Hills on July 12, 2008 at 10:29 AM in Current Affairs | Permalink


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1. I think Douglas Kmiec has a better chance of being nominated by Obama than any Republican. He endorsed Obama and, as I understand, got denied communion by his priest for the trouble.

2. "[A]ny academic appointment to the federal district or appellate bench, full stop." Don't we get a wacko exception (there must be a couple wacko law professors)? Or a John Yoo exception? Or [name your "extreme so far left it satisfies my hypothetical"] professor? And once we get any exception, aren't we sliding back down the slippery slope?

Posted by: Jeff Lipshaw | Jul 12, 2008 11:09:32 AM

Suppose I were to agree that all other things being equal, an appointee from the ivory tower is significantly more likely than other types of appointees to rule in a manner that increases doctrinal coherence. Is that so good that other issues -- morality? honesty? attention to detail? -- are to be ignored? Not a chance.

Doctrinal coherence in the support of torture is of no interest to me at all. While I love coherence when I can get it, and am no great lover of Holmes, he did have a point when he said there was more to the life of the law than just logic.

Some people, yes even some law professors, support ideas that are genuinely evil. Others exhibit behaviors that make them unqualified for the bench (practicing law without a license and plagiarism come quickly to mind). Others may be so in the grip of a reigning ideology or an organizing idea as to overwhelm their ability to let circumstances alter cases.

Not every person, even (especially?) every brilliant person, has the temperament and character to be a good judge. One sort of life tenure does not inevitably entitle you to another: the two jobs have different excellences.

Posted by: Michael Froomkin | Jul 12, 2008 12:19:45 PM

1. I'm surprised that none of the objections you received included the fact that your proposal is essentially to create a professional cartel to reduce political competition.

2. One important assumption you make is that opposing the law prof will lead to the nomination of someone just as bad (results-wise), but not a law prof. History, as in "from Bork to Kennedy," would seem to refute that view.

3. As great as it is to say that the point of a pact is to solve the game theory problem, how are you going to enforce the pact? What about those that don't join? Do we professionally ostracize them? Stop inviting them to conferences?

4. Finally, the unbalanced partisan implications probably render this proposal toast. There are many more left-wing law profs than right-wing ones. Each law prof might be a beneficiary of the pact (he might get nominated) or a victim (he cannot speak out against an unsavory choice). The chance of nomination, however, is controlled by the presidency, which is probably evenly split between the parties (though in recent history has tended Republican). This means the right wing will get to silence a significant source of vocal opposition, without giving up any "slots." The left wing gets to silence some critics too, but those critics are fewer and had less voice in the first place. In short, the proposal will tend to benefit Republicans.

Posted by: TJ | Jul 12, 2008 3:55:14 PM

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