How Do You Measure the Intelligence of a Judge or Judicial Nominee?:
The hubbub over Jeffrey Rosen's TNR profile of Sonia Sotomayor raises some interesting questions about how you know might know how intelligent a judge or judicial nominee happens to be. This issue comes up a lot, so I wanted to blog a few thoughts about it.

  Broadly speaking, I think there are three common ways to assess the smarts of a judicial nominee: 1) look at the nominee's academic credentials; 2) read his or her prior opinions, if the nominee has judicial experience; and 3) talk to people who have worked with the judge before. Let's talk about the strengths and limits of each.

  One common way to measure how smart a judge or nominee is to look at the judge's educational credentials. This is easy and quick because the credentials are public and fit in a single sentence. At the same time, I personally think such credentials are overrated. There are meritocratic elements to these credentials, but they are just elements; candlepower is only one influence on where a person went to school and how they did there. You've probably seen this yourself: you probably know some incredibly smart people with terrible academic credentials, and other people with extraordinary academic credentials who you know aren't very smart. What this means, I think, is that educational credentials don't tell you very much about how smart a judge or judicial nominee is.

  If the nominee has judicial experience, you can read his or her opinions. Based on the Sotomayor opinions I have come across over time, for example, I have generally thought her opinions are good. Not outstanding, not particularly inspired, but good. I include one of her opinions in my computer crime casebook, Leventhal v. Knapek, although I picked it mostly because it's a rare government employee computer search case that does not involve child pornography. It's a solid opinion; not amazing, but solid.

  At the same time, judicial opinions are a tricky measure because outsiders don't know how much of the judge's opinions were written by law clerks. In a world of law clerks, a lot of judicial opinions are good — not amazing, but solid. That wasn't true in the old days. If you skim through an F.2d from the 1930s, for example, you'll probably find a few gems (mostly from the Second Circuit and select other judges) and a lot of opinions that are just terrible. But these days an appellate judge has the option of relying heavily on clerks. Great clerks enticed by a prestigious court in a great location can usually write pretty good opinions, often better than most judges if left clerk-less. So past opinions are a guide, but not a perfect one.

  Another option is to talk to those who have seen the judge in action: litigants, who have seen the judge in a public capacity, and those on the "inside" — former clerks, other judges, and the former clerks of other judges, who have seen the judge in a private capacity. Former clerks and other judges usually won't say anything bad, at least on the record (and if they do say something bad, you worry a lot about personal gripes excessively affecting their judgment). Former clerks of other judges and attorneys who have appeared before the judge can be a pretty good source of information, but there's a "blind men and the elephant" problem that each person is basing a judgment on a relatively limited experience.

  To see this, imagine you're a law clerk for another Second Circuit judge, and your judge sits with Sotomayor once or twice during the year. You see Sotomayor at oral argument a few times, and then you see a few draft opinions from her chambers. Can you really get a good sense of how smart she is? Maybe. But then, maybe not. Maybe Judge Sotomayor is really into a particular case, and asks great questions, or has a great clerk who writes a fantastic draft. Or maybe life got in the way and the judge was off her game that day, or the clerk was ill or lazy and the draft wasn't good. Maybe your judge has always gotten along with Sotomayor, and says good things about her, or maybe your judge and Sotomayor don't get along, and he tells you that she's a bad judge. The experience is valuable, but also limited. It can be similar for a lawyer practicing before the judge. You see the judge work on your case, but usually just your case, and it's only one on the judge's docket. An impression of what a judge is like may or may not be accurate, and it may be hard to get a full sense of a judge without talking to a large number of those who have interacted with that particular judge.

  Finally, there's always a general problem with assessing a judge's intelligence — or really anyone's intelligence: identifying the scale. Someone may be "utterly brilliant" in their high school, "smart" as a college student at Stanford, and "slow" when interviewing for a faculty position at the University of Chicago. Consider that several of Rosen's sources are former Second Circuit clerks. It takes a lot of brains to become a Second Circuit clerk; that's a sharp bunch. At that level, the scale is going to be pretty high; there's nothing inconsistent about saying that a Judge graduated from Princeton and Yale Law and isn't very smart.

  Different people are going to have a different sense of "how smart is smart enough" for a particular position, and therefore different people will use a different scale. Jeffrey Rosen is an academic, and he uses an academic's scale; he wants the brightest of the brightest. I'm also an academic, and I would use a similar scale. But without going into Roman Hruska territory, I think it's fair to say that such a scale is really high, and that others might legitimately find it too high.