Legal Commentary

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?