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Tuesday, December 16, 2008

Another call for the appointment of legal academics

Back in July, when I made a pitch for the appointment of legal academics to the bench as a bipartisan move, I got a mostly skeptical response. Scott Greenfield even accused me of elitism, and my academic colleagues all engaged in a lot of self-hate, doubting whether they were worthy of presumptive Article III honors.

Now Carl Tobias at Richmond is repeating my plea, noting several obvious selections -- Pam Karlan, Kathleen Sullivan, Elena Kagan, etc.

Of course, Tobias leaves out the controversial part: We academics have to take the pledge to support our fellow prawfs regardless of the nominees' ideological persuasion. The faculty of Pepperdine ideally should sign a manifesto endorsing all of the names listed by Tobias. (And the faculty at Yale should endorse an analogous list of conservatives when a Republican President is elected -- e.g., Adrian Vermeule, Eric Posner, John Harrison, Caleb Nelson, etc.)

As I said before, it is time for us academics to regain some credibility with the political nation. Take the Pledge: Endorse a fellow academic whose politics you hate.

Posted by Rick Hills on December 16, 2008 at 11:17 AM | Permalink

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Comments

Rick, your answer to the comment stands in rather stark tension with the basic premise of your proposal. If doctrine doesn't matter because all judges do is vote their ideology, then that is an argument for electing our judges, either directly or indirectly though a highly politicized confirmation process. The only argument I can see for appointing law profs is that law profs are assumed to have a comparative advantage analyzing doctrine--perhaps with policy consequences in mind, but through the lens of legal rather than results-oriented analysis. If you adopt a crit view of the world that judges vote pure politics and law profs just expose this, then pretty much anybody is qualified to vote their own political preferences.

Posted by: TJ | Dec 17, 2008 5:19:01 AM

Anon writes: "For academics to regain credibility, scholarship on issues with practical applications for the bench and bar must become more acceptable. I, for one, agree with Harry T. Edwards, "The Growing Disjunction Between Legal Education and the Legal Pro­fession", 91 MICH. L. REV.34, 35 (1992)."

The difficulty with this sentiment is that bench and bar unite to denounce scholarship that tells the Realist truth about how courts actually operate. Judge Edwards is a prime offender in this respect: When Ricky Revesz produced statistical evidence strongly suggesting that the D.C. Circuit's environmental opinions were heavily influenced by the ideology of the judges on the panels (Richard Revesz, "Environmental Regulation, Ideology, and the DC Circuit," 83 Va. L. Rev. 1717 1997), Judge Edwards angrily denounced these findings -- but made no serious effort to refute them beyond pulling rank. (Harry T. Edwards, "Collegiality and Decision Making on the D.C. Circuit,” 84 Va. L. Rev. 1335 (1998)).

The numbers did not lie: Doctrinal reasoning just cannot explain the outcomes before the D.C. Circuit Court. Indeed, Revesz's statistics show rigorously what any serious member of the D.C. Circuit bar will tell you in private, when they are being candid -- that the names of the judges on the panel matter more to them than the clever doctrinal gotchas in the the other side's briefs.

The reason why law prawfs spend more time on policy than doctrine nowadays is that they are Realists about doctrine: They know that the policy priors of judges matter more than hair-splitting on doctrinal coherence. They do not want to waste their own and their readers' time writing doctrinal apologetics for decisions that are clearly not driven by a passion for doctrinal coherence.

Posted by: Rick Hills | Dec 16, 2008 2:02:06 PM

The faculty of Pepperdine ideally should sign a manifesto endorsing all of the names listed by Tobias. (And the faculty at Yale should endorse an analogous list of conservatives when a Republican President is elected -- e.g., Adrian Vermeule, Eric Posner, John Harrison, Caleb Nelson, etc.)

You're high!

Posted by: anymouse | Dec 16, 2008 12:39:23 PM

For academics to regain credibility, scholarship on issues with practical applications for the bench and bar must become more acceptable. I, for one, agree with Harry T. Edwards, "The Growing Disjunction Between Legal Education and the Legal Pro­fession", 91 MICH. L. REV.34, 35 (1992). There certainly should always be a place for theory and philosophy, but scholarship aimed at assisting judges and (dare I say it) practitioners is now about as popular in the academy as George W. Bush at an Iraqi press conference.

We can't turn our noses up at the bench, then expect to get appointed to it.

Posted by: Anon | Dec 16, 2008 12:34:18 PM

Are you kidding me? Under this "logic," the entire legal academic community would have had to support Yale professor Robert Bork's appt. to the Court! (Or how do you feel about Boalt's John Yoo appointment to the federal judiciary?) Come on.

If academics are to "regain credibility with the nation," they might be better served by making compelling arguments that are rooted in reality.

Pledging to support future appointments of right-wing nitwits is not such an argument. Rather, it is evidence that the poster does not have a solid understanding of how power works in American society.

Posted by: anonymous | Dec 16, 2008 11:57:50 AM

Professor Vermeule claims to be a democrat. No joke.

Posted by: anon | Dec 16, 2008 11:50:36 AM

How about some academics who are accomplished in math and science? Law school is not the place to look for them. Nor is even the Supreme Court, where all but Breyer are notably unschooled in science, math and technology.

Posted by: jimbino | Dec 16, 2008 11:37:00 AM

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