Legal Commentary

I should have seen it coming: Scott Greenfield, over at Simple Justice, takes my proposed pact on judicial nominations to be a slight on trial lawyers with experience in the trenches. This is what comes of treading near to the edge of the Culture War between Academia and the Bar: One risks being misunderstood. In this case, Greenfield assumes somehow that I think law profs make better judges than street-smart lawyers.

Just for the record: I'd presumptively prefer a street-smart, experienced trial lawyer over a law prof as a judge any day. This is especially true for the trial courts, but my preference holds also for the appellate bench as well. In general, the trial lawyers that I know have been wiser, quicker, and more intellectually open-minded than my law prof friends.

Just to show my sincerity, let me urge that President Obama draft Micheal Pitt (former President of the Michigan trial Lawyers Association, of Pitt McGehee Mirer Palmer & Rivers PC, in Royal Oak, MI), Deb La Belle (veteran civil rights litigator of Ann Arbor, MI), or Bridget McCormick (University of Michigan Clinical Prof) to be federal judges. Any of these three would beat out any law prof I know as extraordinary federal judges. (Whether they'd want the job is, of course, a mystery to me).

But, Greenfield, here's the difficulty (and I had thought I had been clear about this point in the first go): Presidents do not typically nominate ace trial lawyers, because ace trial lawyers are not generally Senatorial or Presidential insiders. Aces are too busy trying cases. Instead, the political economy of judicial selection favors discrete and well-connected political animals -- people whom I term "blanks." On top of the political obstacles to appointing the ace lawyers, there is the question of salary: Many top trial lawyers make several times what a federal judge earns, and inducing them to make that sort of sacrifice to spend a lifetime refereeing drug conspiracy cases, immigration appeals, and much of the other often dull business of Article III courts is not always easy.

I urge that we profs put a heavy thumb on the scale of our fellow profs not out of academic elitism (do I really have to prove my bona fides on that score after this post?) Rather, profs should endorse profs simply because (a) profs face a headwind, in that they are paid to write edgy pieces about difficult issues that nix them come confirmation time and (b) the likely alternative to a prof is a blank, not an ace.

But I am happy to accept a friendly amendment from -- or a joint cartel with -- the trial lawyers: We profs will agree to support any nominee for the lower federal courts who is an "ace trial lawyer" (definition to be negotiated -- but I'd say, anyone with roughly 15 years of experience litigating cases and with a great reputation with the ACTL and analogous organizations) if you trial lawyers agree to support analogous law profs.

The absolutely essential aspect of this pact is that neither group should give a whit what any nominee thinks about actual doctrine: On the lower courts, the stakes of such ideological disputes are low enough that we can pocket our preferences about Roe, etc.

Is it a deal?