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Friday, June 28, 2013

A Judicial Hall of Fame

First, allow myself to introduce...myself.  For those of you who don't know me, I teach at the University of Kentucky College of Law and write about election law.  Dan graciously allowed me to begin my July guest stint early so I could post about Shelby County.  (Thanks Dan!)  I guess my time here in February did not cause too many enemies...let's see if I can do better this month!

I just visited one of my favorite places, the Baseball Hall of Fame, and the lawyer-geek in me began thinking, "why don't we have a Judicial Hall of Fame" to honor and immortalize the greatest judges?  A quick Google search shows that there is no such thing (although there is a Father Judge High School Hall of Fame and a Louisiana Justice Hall of Fame!).  So here goes.

We first need to determine the rules for eligibility.  The Baseball Hall of Fame's rules provide a good place to start.  After all, there are plenty of analogies between baseball and judging, although, I know, judges are supposed to be merely "umpires" (tongue firmly in cheek).

To be eligible for the Baseball Hall of Fame, players must have played for at least 10 seasons and have been retired for at least 5 years.  The Baseball Writers' Association of America (BBWAA) elects new members to the Hall, and these voters select players based on "the player's record, playing ability, integrity, sportsmanship, character, and contributions to the team(s) on which the player played."  A player needs to receive votes from at least 75% of the BBWAA membership for election.

Let's incorporate those requirements into our Judicial Hall of Fame rules.  To be a member of the Judicial Hall of Fame, judges must have served on the bench (state or federal) for at least 10 years and have been retired for at least 5 years.  This excludes any current judges.  Instead of baseball writers, let's use law writers -- law professors! -- to vote on who should be in the Hall.  And following the standards for election to the Baseball Hall of Fame, law professors should elect new members to the Judicial Hall of Fame based on "the judge's record, judging ability, integrity, judicial temperament, character, and contributions to the law."  That's amorphous enough to make any law professor happy!

Now we need to decide who should be our inaugural members.  Here's where the debate should be fun.  I'll throw out a few names, and I'd love to hear more suggestions in the comments.  Who knows -- maybe we can turn this Hall of Fame into a real place with plaques and everything, where parents take their kids on a pilgrimage to honor the greatest names in the law!  "Look, Johnny!  When I was your age that Judge was my boyhood hero!"

My initial members of the Judicial Hall of Fame, in no particular order beyond the order in which I thought of them, would include:

-John Marshall:  "It is emphatically the province and duty of the Judicial Department to say what the law is."  Need I say more?

-Earl Warren:  Brown v. Board; Miranda; Loving.  

-William Brennan:  He receives an extra push from me because I'm a voting rights guy, and he pretty much started the field with Baker v. Carr.

-John Marshall Harlan:  his dissent in Plessy itself might give him this honor

-Oliver Wendell Holmes:  the "Great Dissenter"

-Hugo Black:  one of the greatest "textualists"

-Louis Brandeis:  formed today's understanding of the "right to privacy"

-Sandra Day O'Connor:  pioneer as the first female Justice, and was the "swing" vote on the U.S. Supreme Court for many years

-Learned Hand:  His influence as an appellate judge on so many areas of the law is remarkable

-Benjamin Cardozo:  Huge influence as a NY state court judge on tort and contract law (he was a judge for more than 10 years although only served on the U.S. Supreme Court for 6 years).

Have I provided enough fodder for a spirited debate?  No African-Americans are on this list (although Thurgood Marshall almost made the cut for me).  Only one female.  Too many liberals?  Only one court of appeals judge.  No judges who only served on a state court.  Which obvious Judges am I missing?  

Posted by Josh Douglas on June 28, 2013 at 02:27 AM | Permalink

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How about Thomas Cooley? Arguably, his scholarship (e.g., Constitutional Limitations) articulated a dominant worldview of an entire an era of American law. And with him you can add a state court judge to the list.

Posted by: Lael Weinberger | Jun 28, 2013 8:14:53 AM

Need to make an exception to the state or federal requirement for Coke and Blackstone.

Posted by: brad | Jun 28, 2013 8:54:34 AM

I'll play.

No to O'Connor. Her contributions were short-lasting and, in many cases, incoherent. Yes, she was the first. But Pumpsie Green is not in the Hall and the BBWAA didn't put Larry Doby in. Thurgood Marshall is an interesting question; the issue is how much of his tremendous impact on the law was made through his judicial decisions, as opposed to when he was a lawyer?

I'll add:

• Joseph Story. Smarter than Marshall.

• James Kent. Made Equity meaningful in NY.

• Frank Johnson. Especially for his segregation decisions as a district judge)

Posted by: Howard Wasserman | Jun 28, 2013 8:56:10 AM

Roger Traynor would be a good choice for a purely state judge.

Also don't think O'Connor should get in. Being the first woman is important, but she didn't make much jurisprudential impact, and where she did it's not necessarily a good thing. The absence of women and minority candidates mostly reflects the dead/retired requirement; there just haven't been very many until the last two generations.

Which side of the Jackson-Frankfurter feud gets in? Either? Both?

Does his Dred Scott opinion disqualify Taney? Because otherwise he would probably get in easily, right? Does that make Taney the Shoeless Joe Jacskson/Pete Rose of the Judicial Hall of Fame? Say it ain't so, Roger, say it ain't so!

Posted by: Corey | Jun 28, 2013 9:22:22 AM

I thought of Jackson. You should put him in on the strength of Barnette and Steel Seizure alone.

Posted by: Howard Wasserman | Jun 28, 2013 9:45:30 AM

Interesting comments, all. Corey, I love the Joe Jackson/Roger Taney analogy!

For me, O'Connor's influence as the deciding Justice was significant, although I agree that reasonable minds can differ.

OK, everyone. More! More! Should we turn this into a "real" thing?!?

Posted by: Josh Douglas | Jun 28, 2013 10:17:39 AM

http://query.nytimes.com/mem/archive/pdf?res=F20715FE345D12728DDDAC0894DC405B898BF1D3

Posted by: Marty Lederman | Jun 28, 2013 11:00:18 AM

Henry Friendly

Posted by: Mr. Friendly | Jun 28, 2013 11:14:06 AM

Roger J. Traynor

Agree with Howard, regarding his doubts about O'Connor -- doesn't seem like she has had much jurisprudential impact. Pioneering counts, but Jackie Robinson was a HOF'er even without that.

Posted by: andy | Jun 28, 2013 4:15:19 PM

Ronald George - long time and important chief of the California Supreme Court.

Felix Franfurter - obviously an influence on the current chief.

Posted by: Brett | Jun 28, 2013 4:45:49 PM

Henry Friendly's opinions created the law in many areas. Sandra Day O'Connor was notable for her gender not her judging. What about Rehnquist? He steered the court in a direction that many law professors don't like but it's hard to dispute his impact.

Posted by: Douglas Levene | Jun 29, 2013 6:12:46 AM

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