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Saturday, July 12, 2008


I guess I'm not convinced by Rick's post that there's any particular need for a "non-aggression" pace for law professors who are judicial nominees.

I certainly would like to see the heat turned down on judicial nominees in general -- not off, by any means, but down. And that is true, too, for professors who are nominees. I also agree that our nomination process, not just for judges but for all manner of federal appointments, has focused too much on "blanks" -- on nominees whose noses are unnaturally clean and who have little record behind them. Anyone who spends enough time in Washington or among federal employees at all levels of government knows that there is, in fact, a surprising number of people who have literally led entire lives of public and private virtue in which they have done nothing the least bit scandalous. The pool of such individuals is large enough that we could substantially select just among them. But these are not the only traits we should be looking for, whether in judges or any other position; there is also room for creativity, risk-taking, and even past "naughty" behavior. A diversely staffed judiciary, or any other federal agency, needs at least some oddballs and different drummers, and shouldn't just be composed of Stepford spouses. Law professors might add to that oddball mix, although it strikes me as a questionable proposition that most law professors are in fact unconventional thinkers. So I share some points of agreement with Rick. But my disagreements outweigh them.

For one thing, I am not sure what basis Rick has for saying that "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." Certainly Rick has correctly picked up on the old saw that the definition of a "judge" is a lawyer who knew a governor. But why assume that literally any law prof is likely to be as good or better than the typical Senator's friend or staffer? That might be more likely to be true if the Senator picked an out-and-out hack from practice; but can't law professors be hacks too? And why assume that all law professors are more likely to be high-performing lawyers? All we know, usually, about law professors is that they were high-performing law students; everything else in their careers usually follows from those early credentials. Not many law schools ask or even care how a professorial candidate actually performed in practice, as long as they check off the usual box -- elite law firm or government office, etc. Shockingly, many superb lawyers either didn't have stellar law school grades, or did but had no interest in the cloistered life of the academy -- and some of them will be candidates for the bench. So why just assume the profs are more qualified?

Moreover, Rick's statement begs the question: as good or better at what? A professor might be likely to be knowledgeable about the law, and skilled at legal manipulation, and those are both valuable traits for judges. But they are not the only valuable traits, especially for district court judges. Other traits we might want to select for would include a knowledge about the real world of litigation, experience in dealing with lawyers and litigants and the full flurry of human limitations, a sense of the institutional needs of the courts and the wherewithal to defend them, and so on. I don't see any basis for thinking that law professors are likely to be better at these things than practicing lawyers or even congressional staffers.

It is possible that law professors are less likely to be "corrupt" than these other lawyers, depending on how you define the term, if for no other reason than that they are less likely to be worldly, or at least successfully worldly. But there are all kinds of ways for judges to be corrupt. One of those, and the most important, is to lack impartiality; and I see no reason for assuming that law professors will be impartial than any other lawyer, particularly once you factor in partiality based on political ideology. That is especially true once you factor in the possibility that the profs most likely to be selected for judicial positions are not the best law professors as such, and certainly not the most monkish and insulated professors, but precisely those professors who have had some worldly contact with the environment of political parties, ideological stalking-horses like the ACS or the Federalist Society, etc. Indeed, to that extent, it is perhaps more likely that the professors selected for judicial nominations will have been precisely those professors who, whether or not they would see it this way, at some point showed a demonstrable willingness to sell out their scholarly obligations in the service of some set of ideological or jurisprudential goals or another. And we should exempt these folks from criticism because . . . ?

A few other objections: It is true that professors are more likely to have a paper trail that might cause them trouble, although all too few professors really say much that is controversial in their writings. But it is less clear why those remarks should be completely insulated from collegial criticism. To be sure, most of that criticism is likely to be either mistaken or unfair or, quite simply, ideologically driven. But what if a professor says something in his or her writing that is genuinely and deservedly controversial? Why should it get a free pass? Certainly, as I have made clear, we should be more willing in general to allow all nominees to say something(s) controversial over the course of their career, at least if we want something other than drones or stealth candidates filling the bench; but why single out professors? In any event, it seems to me that we already have effectively given a largely free pass to at least those professors who are the most respected across the academy. Rick mentions Judge McConnell. But Judge McConnell was confirmed, despite having said a career's worth of arguably controversial things; any holdup to his confirmation was certainly not owing to anything law professors said, those professors having by and large championed his confirmation, sometimes in ways that seemed inconsistent with the broader views of some of those professors.

Also, and am I am just speaking for myself here, but I think Rick overstates the value and importance of having a coherent legal "theory." That certainly is a nice thing for professors, who love writing about judges with theories; but I am not convinced that having a theory is a more important quality for judges than having a good dose of common sense, judgment, and other such traits. Moreover, I think legal theories are far less constraining than Rick suggests, at least for the average judge; and I think it is perhaps going too far to say that the average law professor has a "coherent" legal theory. And even if such theories are somewhat constraining, it must be pointed out that they very well could have been tailored ex ante to give the theorist in question most of whatever ideological outcomes he or she prefers, while "constraining" him or her only on matters he or she doesn't value all that much and is thus willing to sacrifice. Maybe Justice Scalia is willing to give criminal defendants something on the Sixth Amendment front as long as he is able to oppose abortion and gay rights in a way that is consistent with his "theory" (and vice versa for some liberal theories of judging, of course). Is that really a meaningful "constraint?" Does it really make us better off than searching for some more untethered "pragmatist" judge who, on the whole, displays better judgment and greater genuine restraint?

Finally, I guess I just don't see the point of a blanket rule of non-aggression here. I would like to see people behave better in general, but not because they are locked into some formal rule that wouldn't necessarily make sense in particular cases. In some strange way, this reminds me of discussions I've had about word limits in law review articles. We used to have a proxy rule that assumed that long articles were better, because those doing the selecting didn't necessarily have the skills or experience to make qualitative judgments about submissions. Now we have a proxy rule that assumes that articles over 35,000 words are worse, or at least less suitable for publication. There may be beneficial results to this, but really it is just another proxy rule that both substitutes for and suggests the editors' inability to make qualitative judgments in the first place. The same thing goes here. I would rather that there be fewer, or at least smarter, controversies about judicial nominations, but to get there I would rather increase everyone's good sense -- not impose a blanket rule of "non-aggression." I'm no pacifist; sometimes a little aggression is a good thing.

Posted by Paul Horwitz on July 12, 2008 at 02:46 PM in Paul Horwitz | Permalink


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Excellent post, Paul. I agree.

Posted by: Orin Kerr | Jul 14, 2008 11:40:22 AM

No one who has passed the first year of any law school should be allowed to sit on any bench, in any legislative seat, nor hold any responsible position in the executive branch.

The idea that an amateur can judge is preposterous. And lawyering is almost unrelated to the judge profession. If judging is complex surgery, lawyering is bed pan emptying. The result of these uneducated, amateur making ultimate legal decisions has been the failure of every goal of every law subject.

Posted by: Supremacy Claus | Jul 12, 2008 10:51:49 PM

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