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Law Profs for the Bench:

Rick Hills is proposing a professorial non-aggression pact for judicial nominations of law professors.

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 [but Kmiec endorseed Obama -- JHA]; Right law profs will endorse, for instance, Dean Elena Kagan for the D.C. Circuit when a Democrat occupies the White House.
I'm ready to sign on (even though -- or perhaps because -- I'm quite sure I'd never be a direct beneficiary. But I'd also go Rick one better, and suggest that law professors begin urging an overall de-escalation of judicial nomination fights. In particular, it would be nice if law professors stopped providing intellectual ammunition to Senators and activist groups who wish to dress up their ideological attacks on qualified judicial nominees. In my opinion, the purpose of Senate confirmation for judges (as for ambassadors and many other positions) is to prevent against cronyism, not second-guess the President's ideological preferences.

So, I will support Prof. Hill's non-aggression pact, but I will also support well qualified nominees of either party to the federal bench, irrespective of their ideology. While I suspect I'd prefer McCain's nominees to Obama's, I think the senate should act promptly whomever sits in the White House, and should confirm those who have the objective qualifications to be federal judges or justices.

Commenterlein (mail):
Wouldn't this likely lead to the stuffing of the federal bench with ever more radical ideologues in order to to satisfy the respective party's base? I think I prefer a system in which the most extreme ideologues cannot get confirmation in the Senate.
7.12.2008 1:53pm
DiverDan (mail):
While I would readily endorse a de-escalation of the politicization of jududial nomination fights, I think a complete "non-aggression pact" among academics is a very, very bad idea, and I will completely lose trust in any academic who doesn't reserve the right to oppose unqualified nominees. For example, if a President Obama were to nominate Anita Hill for a position on the Federal Bench, I would certainly hope that at least some academics would stand up to say that she is patently unqualified.
7.12.2008 2:05pm
DiverDan (mail):
Just to be clear, I mean that Anita Hill is unqualified based on the incredibly poor quality of her scholarship (her scholarly articles are either incomprehensible or laughably poor in reasoning)- I can think of a couple other examples that all just happen to be left (usually far left).
7.12.2008 2:10pm
Benjamin Davis (mail):
Last non-aggression pact I can remember is Hitler-Stalin and it did not last long. Sorry, non-aggression pacts are just a smoothe way of maintaining dominance of mechanisms that one side controls and the other does not have access to. I agree with Diver Dan - except I think Anita Hill would be great on the bench.
Best,
Ben
7.12.2008 2:11pm
Bill Poser (mail) (www):
Diver Dan,

I'm curious about Anita Hill's scholarship. Care to cite a few papers and explain why they're so bad?

I am a little curious as to why you raise her as an example of an unqualified nominee. People on the left may believe her testimony, but I've never heard her touted as a potential Supreme Court Justice. Indeed, as far as I can tell she is a conservative.
7.12.2008 2:31pm
DangerMouse:
What are they afraid of if a non-aggression pact isn't agreed to? The politicization of the courts? It's just too late for that. The Courts are far too gone. Might as well have Anita Hill on them. They're already running things as if she would want, so why not just pull aside the curtain and show the people how bad they really are?
7.12.2008 2:31pm
Cliff (mail):
Anita Hill isn't even a law professor anymore. She's a "Woman's Studies" professor or some other such nonsense.

Ambassador to the Lost Tribes of the Amazon maybe?
7.12.2008 2:33pm
Cliff (mail):
Bill,

Yes, that's the blatant lie that the left tried to sell when Hill was busy lying her a$$ of about Thomas.

Problem is, absolutely nobody who actually knew her believed it. She was, and remains, a radical liberal. Unfortunately, she's not even a bright radical liberal.
7.12.2008 2:36pm
Federal Dog:
This is one of the most unprincipled proposals that I have ever heard. If the candidate is bad and apt to do damage for life if appointed, intelligence and professional ethics dictate opposition.

Nothing makes law instructors intrinsically qualified for the bench. Indeed, much about academic cloistering makes such appointments particularly worrisome.
7.12.2008 2:40pm
Bill Poser (mail) (www):
Cliff,

I can't find any information on her political views either way. What is the basis for your statement that Anita Hill is a "radical liberal"?
7.12.2008 2:53pm
tarheel:
In my opinion, the purpose of Senate confirmation for judges (as for ambassadors and many other positions) is to prevent against cronyism, not second-guess the President's ideological preferences.
7.12.2008 3:02pm
tarheel:

In my opinion, the purpose of Senate confirmation for judges (as for ambassadors and many other positions) is to prevent against cronyism, not second-guess the President's ideological preferences.

I agree with the general sentiment about de-politicizing nominations, but I wonder what your basis for this assertion is. Is that your view of the intent of the framers or just what you think advice and consent should mean?
7.12.2008 3:04pm
mga (mail):
In theory, I think this is an excellent idea. In practice, it will happen only if the Courts stop deciding fundamentally political issues like abortion or gay marriage (both of which I support as a matter of policy). Trying to take those issues away from the political branches simply transfers the politics to the process of confirming judges, as the past three conservative nominations to the Supreme Court have proven.
7.12.2008 3:08pm
byomtov (mail):
I agree with Federal Dog. This is highly unprincipled, not to mention incredibly arrogant. Consider Hills' argument:

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.

Are all law professors really such Solomons?

Why a law professor would automatically be a better choice than a Senate staffer I do not understand, and of course the characterization of other nominees is more than a touch arrogant. What about a state judge? And why so dismissive of the idea that a practicing attorney might do a good job?
7.12.2008 3:41pm
frankcross (mail):
I think there's already a built in professional courtesy here. Liberal lawprofs seemed to be clear backers of Michael McConnell in recent Supreme Court nomination derbies. When a prof is highly respected for his abilities, I wouldn't be worried about simple ideological opposition.
7.12.2008 3:51pm
Fub:
Cliff wrote at 7.12.2008 1:33pm:
Anita Hill isn't even a law professor anymore. She's a "Woman's Studies" professor or some other such nonsense.
According to Brandeis University as of 2005, she is "professor of social policy, law and women's studies, Heller School for Social Policy and Management".

More here and here.
7.12.2008 3:59pm
Displaced Midwesterner:

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.

Um, sure. Does this guy even know of a single lower court judge or have the slightest clue as to what they do? This kind of argument should really be backed up with at least a shred of evidence, just a tiny one would be fine to start. As it is, it is a good example of academic arrogance and one reason why this pact would be a poor idea. Most lower court federal judges are very good and are eminently qualified. No way I could say the same about state court judges in all 50 states, but given the context I'm assuming this is just about federal judges (and most state judges are elected anyway).

I have a counter-proposal. How about the Senate and the Presidential nominees form a pact, in which they agree not to appoint or confirm any more law professors to the bench?
7.12.2008 4:16pm
Displaced Midwesterner:

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.

Said staffer or friend might be better at grammar, though.
7.12.2008 4:19pm
Paul Milligan (mail):
What utter and complete crap.

'Automatically accept a nomination just because they happen to work for a schhol '????

What a competle abdication of moral responsibility, and the Constitutional responsibility of President and Congress, to seek 'the best qualified', not 'whosoever happens to work for some bullshit liberal arts college, or pretend law school ( like that crap in Andover, MA ), as long as they are workign for some school somewhere'.

Disgusting idea, ludicrous, and abhorrent to our sytem at its heart.
7.12.2008 4:48pm
CFG in IL (mail):
This is just silly.

Should John Yoo be unopposed?
7.12.2008 5:24pm
Originalism Is Useful (mail):
Should John Yoo be unopposed?

Bybee is a federal judge.
7.12.2008 5:38pm
pireader (mail):
Professor Adler wrote -- In my opinion, the purpose of Senate confirmation for judges (as for ambassadors and many other positions) is to prevent against cronyism, not second-guess the President's ideological preferences.

And my opinion is exactly the opposite. Both parties have, and will likely continue to have, at least 41 Senators; and that many can block a confirmation. So I favor energetic Senate opposition to opposing ideologues.

That way, a President of either party will know his best chance of winning confirmation is generally to nominate a centrist ... or a person so revered as to carry cross-party support. We'd get a lot fewer ideological water-carriers of any stripe on the bench.
7.12.2008 6:03pm
Snarky:
Rick Hill is completely unprincipled. What a loser.

Take two people with identical views who would have a tendency to rule in an identical manner. It is okay to oppose one, but not the other, merely because of the job they have?

Hill must think law professors are better than the rest of us.

At least Adler has the good sense to propose that we should let all candidates be confirmed with less scrutiny.

I am of the position that confirmation hearings are too easy. There should be more scrutiny. In my view, if a candidate does not answer a question to the complete satisfaction of whoever is asking, Senators of both parties should get together to vote against that nominee, regardless of party.

But regardless, I am opposed to giving people different treatment based on their occupation. That would be positively un-American. Rick Hill can go f*** himself.
7.12.2008 6:05pm
LM (mail):
Prof. Adler's desire to de-politicize confirmation seems like a sensible reaction to the depleted judicial rosters that burden the dockets of sitting judges. But only up to a point. Not if, as pireader suggests, more comity would signal a rush to plug vacancies with the type of extreme ideologues who have until now been casualties of the confirmation wars. How to navigate between those hazards is the real question.

As for Prof. Hills' professional non-aggression pact, I agree with Frank Cross. To the extent it would be desirable, it's already tacitly in operation.
7.12.2008 6:49pm
Adam B. (www):
Liberal lawprofs lined up to support Mike McConnell for the 10th Cir. So the only question really is whether conservatives will afford Obama's nominees the same courtesy.
7.12.2008 7:24pm
Snarky:

So the only question really is whether conservatives will afford Obama's nominees the same courtesy.


I hope not.
7.12.2008 7:33pm
Don Meaker (mail):
Rather than confirm more judges, the Legislature could repeal many laws.

The Executive could, all by itself produce "Prosecution Guidelines" to direct federal prosecutors to not prosecute, nor to use as plea bargain positions, various enumerated laws. If the guidelines were made public, they could be provided to juries by defense counsel as justification for jury nullification.
7.12.2008 10:45pm
Bill Poser (mail) (www):

The Executive could, all by itself produce "Prosecution Guidelines" to direct federal prosecutors to not prosecute, nor to use as plea bargain positions, various enumerated laws.


Prosecutorial discretion does not extend to a decision never to enforce a law. An Executive Order never to enforce a law would constitute a breach of the President's oath "faithfully to enforce the laws".
7.12.2008 10:56pm
Dan Simon (mail) (www):
In my opinion, the purpose of Senate confirmation for judges (as for ambassadors and many other positions) is to prevent against cronyism

Well, as I always say, nothing's more likely to prevent against [sic] cronyism than having a select group of people enter into an agreement always to support each other's hiring at every opportunity...
7.13.2008 12:00am
Bill Dyer (mail) (www):
It's entirely possible for the Senate to vet, and confirm, nominees' general credentials and suitability without having to drop into hyper-partisan mode.

Neither Justice Ginsburg or Justice Breyer has been much of a surprise on the Supreme Court. Their voting records could have been — indeed were — accurately predicted before the Senate confirmed them, based on their prior judicial writings and indeed their entire career arcs. In both cases, the Senate appropriately preferred that they had the appropriate qualifications and no (non-ideological) disqualifications; having done that, the Senators appropriately consented to their appointments, notwithstanding the ideological opposition many conservative senators may have felt to both the nominees' judicial activism and political liberalism. Their confirmations are examples of the way the system ought to work.

The system also worked appropriately overall in the Roberts and Alito confirmations, but that was notwithstanding the unconcealed and reprehensible hyper-partisanship of a substantial minority of senators, all of them Democrats, and chief among them the current Democratic presidential nominee.

The "pact" proposed by Prof. Hill, however, is even worse, if I understand it correctly. The Obama/Roberts paradigm may tend toward disqualifying a lot of well-qualified and appropriate nominees entirely on partisan grounds, but that's better than putting patently unqualified people onto the bench, which could well be the result of the Hill Protocol (if it were successful). I respect a great many law professors, including many of the authors of this joint blog, as dedicated and capable educators and legal scholars. But I also have been acquainted with s not insignificant number of law professors who I would not trust to referee a summer camp volleyball game. Giving all academics a "free pass" is a remarkably bad idea, and I'm grateful Prof. Hill's proposal has no chance of ever being embraced on its own terms.
7.13.2008 1:12am
Jason D.:
If I recall correctly, the pact was to support professors to lower courts, not the Supreme Court. Thus, the discussion about the Supreme Court is off point. For example, Michael McConnel was supported by a lot of professors, but Akhil Amar strongly suggested he wouldn't have supported him as a nominee to the Supreme Court. His reasoning, which I find correct, is lower court judges are required to follow Court precedent, while Supreme Court Justices are not. Therefore, idealogy isn't nearly as important. Furthermore, I agree that all professors are qualified to be Justices, but I would imagine that most professors are qualified to be lower court judges. The problem with the pact, it seems, that many of you have is that it presupposes professors are qualified instead of saying one can't oppose a professor nominee based upon ideology.
7.13.2008 2:35am
Jason D.:
"(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?"

If one assumes Hill's argument, this isn't a legitimate argument. If a professor you oppose is better than a no-name nominee, one doesn't need a "favor" in return to make supporting the professor a good decision for you. The fact a better nominee for you is appointed is sufficient to make it the proper decision.
7.13.2008 2:40am
Jason D.:
I agree that all professors are qualified to be Justices

The first post should say "I agree that all professors are NOT qualified for the Supreme Court"
7.13.2008 2:42am
Pashley (mail):
As was pointed out by posters above, the politicalizing of the judicial approval process was a by product of the politicalizing of judicial decisions. In her way, Anita Hill was the eventual end product of the judiciary's drift into political decisions; second-guessing the executive in running the government, second-guessing the legislative branch in passing laws. So a cease-fire wouldn't be between liberals and conservatives. A cease-fire would be between the judiciary and the other two branches of the government.

Unless proven otherwise, a law professor from the liberal ghetto (i.e., academia) would probably not be the best candidate to exercise restraint in keeping their judicial opinions out the brutish political realm.

We may have forgotten, but judges wear black so that they no longer represent themselves and their own opinions, but the rule of law. Would-be judges should cringe at, for example, gay marriage, not only because it is judge-made law, but also at the stakes are raised in the next judicial nomination.
7.13.2008 2:50am
Jason D.:
"Independant trubinals of justice would consider themselves in a peculiar manner the guardian of rights" - James Madison

Pashley, it seems being the guardian requires judges to second guess the executive and legislature. Thus, "second-guessing" isn't anti-democratic as you suggest, rather not second guessing them is anti-constitutional.

And to respond to those that say the solution is to overturn the Roe v. Wade's of the judiciary world. Well, that's not realistic anytime soon, and if it was, its beyond law professor's control. Even if Roe was overturned, it wouldn't de-politicize the judiciary. Those believing the Constitution protects the right to have an abortion would just try to bring back Roe. The only thing that would change is the "winning" side of the debate for the time being. And if history suggests anything, politics have always played a role in the judicial branch. Overturning Roe may decrease that, but it would stop it completely. The only way for the judiciary to not be politcal is, as Pashley suggest, for them to stop practicing judicial review. And to that I say, the cure is FAR, FAR worse than the disease.
7.13.2008 3:47pm
A.S.:
Is there any evidence that law professor support for other law professors makes any difference one way or another? In other words, did the fact that Michael McConnell was supported by various law professors across the ideological spectrum make any difference to his confirmation? I'd doubt it.

But, on the off hand that this non-agression pact is implemented, John Yoo for 9th Circuit!
7.13.2008 5:26pm