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Wednesday, July 13, 2011

Why do we want judges to be great lawyers?

In the rhetoric of judicial nomination fights, two things that just about everyone agree on are: (1) judges should be great lawyers, and (2) judges should not engage in results-oriented decision-making, that is, they should not first come to a predetermined outcome based on extra-doctrinal considerations and then dress up that outcome in legalistic mumbo-jumbo.

But it seems to me that the very definition of a great lawyer is someone who can take a predetermined outcome based on extra-doctrinal considerations (my client should win because he is paying me), and dress it up in legalistic terms in the most persuasive manner.  Sure there are other attributes associated with a successful lawyer, but the ability to twist legal doctrine to reach your client's desired result seems to be the defining trait.

One reason to have judges be great lawyers is that they would then be able to call out the lawyers who appear before them for doing this.  This is rather akin to having the best thief in the world design your safe.  But if you get a thief to design your safe, you better make sure you have some way of controlling him afterward.

Posted by Tun-Jen Chiang on July 13, 2011 at 05:16 PM | Permalink

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the premise established in the title is sophistic, a)as there is no such thing as great lawyer. and b) when you say "we", are you referring to the "people", or to the collective legal industrial complex?

Posted by: concernedcitizen | Jul 14, 2011 7:53:31 PM

Orin, saying that we look for prior judicial experience when picking judges begs the question of how that "prior judicial experience" came to be. As for suggesting alternatives, as I said above, that really wasn't the point of my post.

Posted by: TJ | Jul 14, 2011 4:44:53 PM

I think the confusion here stems from the fact that there are lots of different types of great (read highly effective) lawyers.

Some lawyers are highly effective simply because they are very persuasive people (eg John Edwards). Others are highly effective because they are master chess-players (eg David Boies). Still others because they are great writers or legal analysts (eg John Roberts, Laurence Tribe). And some because they are known for their judgment (eg Lloyd Cutler). Of course, many lawyers have more than one of these traits and there are other important traits as well.

I think TJ's point has some validity to the extent that we assume "great lawyer" means great on the level of pure persuasiveness or adversarial wherewithal (the Edwardses of the world and some of the Boieses). But those are not the only qualities that make a great lawyer -- and in any case, some great trial lawyers are also brilliant legal minds.

Posted by: AF | Jul 14, 2011 2:32:32 PM

The Justice who had the highest reputation as a practicing lawyer before being appointed to the bench, in probably the last one hundred years if not for the entire history of the U.S., is Thurgood Marshall.

Was Marshall really that admired (more than Roberts??) for his lawyering skills, or was he admired for his personal dedication and brilliant strategizing as to civil rights?

Posted by: Anon | Jul 14, 2011 10:18:32 AM

TJ:

******
And I should also ask, who are the "great" lawyers on the Court's bench that write such magnificent, non-confusing, uncontroversial opinions?
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Justice Jackson, Justice Harlan II, etc.

Posted by: Orin Kerr | Jul 14, 2011 8:40:18 AM

TJ:

******
[W]e seem to want to pick the very people as judges who have devoted their entire careers to practicing something (making results-oriented legal arguments regardless of whether they believe those results to be the most faithful deduction from doctrine) that judges are not supposed to do.
******

First, I don't think that's right: One of the primary things judge-pickers look for these days is prior judicial experience. Second, even if it's right, what are the realistic alternatives? What would you look for?

Posted by: Orin Kerr | Jul 14, 2011 8:38:43 AM

In thinking about "great" - or bad, for that matter - lawyers, consider Lawrence M. Solan's "Lawyers as Insincere (But Truthful) Actors" available via SSRN"

http://ssrn.com/abstract=1873359

By the way (sincerely), Jim's saying about "good" lawyers suggests the gatekeeper role that perhaps for economic reasons too many lawyers ignore.

Posted by: Shag from Brookline | Jul 14, 2011 7:32:58 AM

Asher, really? The Justice who had the highest reputation as a practicing lawyer before being appointed to the bench, in probably the last one hundred years if not for the entire history of the U.S., is Thurgood Marshall. Justice Marshall is greatly admired for a great many things, but doctrinal [persuasiveness] is not one of them.

[And I should also ask, who are the "great" lawyers on the Court's bench that write such magnificent, non-confusing, uncontroversial opinions?]

Posted by: TJ | Jul 13, 2011 11:47:46 PM

I'll give you a couple reasons. I'm interning for a COA judge at the moment, doing a lot of habeas work, and I'm forced to wade through a lot of state court opinions and a lot of lousy briefs. And what I find is that the greatest vice of a bad lawyer, or a bad lawyer-as-judge, isn't necessarily that he tends to get the law wrong, but that he's incapable of precisely stating what his understanding of the law is. Many state court opinions are written so poorly that, not only can one not tell what rule they're using, or what the rule they're stating actually means, one often can't tell what is actually happening at a given point in an opinion. Are they adjudicating a claim on the merits? Are they saying it's procedurally defaulted? Is a statement holding or dictum? Often one really can't tell. This creates enormous problems for review, creates confusion for litigants, causes courts to badly misunderstand what precedent says and divide amongst each other as to what precedent says. Now, I suppose you could concede that a judge has be a pretty good lawyer, but argue that past that point lawyerly facility can be a dangerous thing, or isn't even that useful. But I think even at the Supreme Court, where no one's been a truly bad lawyer in a long time, the opinions of the Court's lesser lawyers - Justices like Warren, Blackmun, O'Connor, Burger, Douglas, Kennedy - have tended to make for more doctrinal confusion than those written by the Court's better lawyers. Nor is it an accident that those Justices are authors of many of the Court's most controversial and vulnerable precedents; being so-so (relatively speaking) lawyers, they often struggled to give compelling legal reasoning for their decisions. You might argue, in the case of a poorly reasoned case you don't like (Roe? Bush v. Gore?), that we're better off for it's having been poorly reasoned than successfully dressed up in persuasive "legalistic mumbo jumbo." Like James above, however, I see the legitimacy of the judiciary as a good in and of itself - and I suspect on reflection you would too. For example, would you want judges to write opinions that said things like, "I don't like affirmative action, so I think it's unconstitutional," or, "I'm pro-defendant, so I think that inmates can seek access to their DNA evidence through Section 1983 instead of habeas"? Of course not, even though that would be a great deal more honest than what opinions on these issues actually say.

Posted by: Asher | Jul 13, 2011 11:39:49 PM

I am reminded of the saying, which I paraphrase here, that half of any good lawyers time should be spent telling their prospective clients they are damn fools and should stop. Good lawyers don't just argue for their clients desired result; they also advise their clients when they have no ground to stand on.

Posted by: Jim | Jul 13, 2011 11:08:16 PM

"James, most legal realists are realists in a descriptive sense. That is, they think that judges do dress up their ideologically determined decisions in legalistic mumbo jumbo, not that they should. "

Okay, then. That's the answer to your question. A lawyer who can "take a predetermined outcome based on extra-doctrinal considerations ... and dress it up in legalistic terms in the most persuasive manner" is a great lawyer only in a descriptive sense, not a normative one. But what we "want" from judges is a normative matter, and what we want from them is to be great lawyers in a normative sense.

Posted by: James Grimmelmann | Jul 13, 2011 10:50:16 PM

Yeah, sorry... first post may have come across more caustic than intended. Real point wasn't actually about what you did or didn't include, but was about the actual reason judges are chosen the way they are - we want smart, conscientious people who understand the law. That tends to mean "good lawyer," but I've actually rarely heard it phrased the latter way instead of the former when someone really talks about what we want in a judge.

Posted by: Patrick | Jul 13, 2011 9:48:31 PM

Patrick, since when did expectations for a blog post become equivalent to a law review article? The point of my post is to note an interesting observation. I'm not even necessarily saying the status quo is wrong, and I am not trying to put out an alternative.

But to respond to your point, the only alternatives are not bad lawyers and non-lawyers. We could, for example, follow the example of some European countries and train law students to be judges as a career track. Or we could appoint law professors. I'm not advocating any of those alternatives, but only note they exist.

Posted by: TJ | Jul 13, 2011 9:35:43 PM

I'd also note that a whole lot of judges come from the ranks of prosecutors and other government lawyers, whose job (at least in theory) is not motivated argumentation on behalf of a client, but instead a search for truth to make sure justice is done.

Posted by: Patrick | Jul 13, 2011 9:24:55 PM

This is only half of a blog post. The second half would tell us who we SHOULD pick to be judges, if not good lawyers. There are essentially two options: Bad lawyers, and nonlawyers. Neither seems an improvement. Bad lawyers are dumb, and non-lawyers don't understand the law. The reason we want good lawyers to be our judges is that we want judges to understand the law, and we want them to be smart; it's not for the instrumental advocacy skills you point to here.

Posted by: Patrick | Jul 13, 2011 9:21:14 PM

Orin, that is a pretty metaphysical distinction. To use my thief analogy, it is like saying that the defining skill of a good thief is the ability to get an accurate sense of the strength and weaknesses of a safe's defenses, and that a thief then only uses that skill to a particular end. It is true enough. But it doesn't take away from the fact that we seem to want to pick the very people as judges who have devoted their entire careers to practicing something (making results-oriented legal arguments regardless of whether they believe those results to be the most faithful deduction from doctrine) that judges are not supposed to do.

Posted by: TJ | Jul 13, 2011 9:04:06 PM

"The ability to twist legal doctrine to reach your client's desired result seems to be the defining trait [of a lawyer]."

I disagree. I tend to think that the defining trait of a good lawyer is the ability to get an accurate sense of the strength and weaknesses of various legal arguments. It's true that a lawyer must then go on to use that skill to develop the strongest case for his client, but that's a use of the skill, not the skill itself.

Posted by: Orin Kerr | Jul 13, 2011 8:49:15 PM

John, yes, that is one of the other attributes of a successful lawyer that I implied. But it is no good knowing what the other side will likely say, if you can't come up with an argument favoring your own side.

James, most legal realists are realists in a descriptive sense. That is, they think that judges do dress up their ideologically determined decisions in legalistic mumbo jumbo, not that they should. On your bigger point, I suppose one way to think of the "great lawyer" we supposedly should want for our judges as someone utterly mercenary and having no ideological commitments other than his own enrichment. Somehow I don't think that is what anyone means by the term in judicial nomination debates.

Posted by: TJ | Jul 13, 2011 8:21:45 PM

Aren't the best lawyers the ones who, before choosing the best argument for their clients, correctly anticipate the views of the opposing lawyer, the judge, the jury, and the public? (See, Kronman's The Lost Lawyer and Plato's Phaedrus)

Posted by: John Steele | Jul 13, 2011 8:04:31 PM

Under the theory of the judge as a form of excellent lawyer, the best lawyer also has no preexisting commitments of his or her own, but only those of the client. The judge, freed from the obligations of serving a client, will have no incentive to shade the outcome.

A legal realist would say that you are exactly right, and this is exactly why we normally prefer judges to be great advocates. The law is always inherently pre-determined, extra-legal results; the good of a judge who can dress the results up in legal mumbo-jumbo is that the outcome becomes socially acceptable.

Posted by: James Grimmelmann | Jul 13, 2011 7:36:15 PM

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