Thursday, May 30, 2013

Whatchu talkin'bout Perfessor?

I have been reading The Passage of Power: The Years of Lyndon Johnson, Robert A. Caro's fourth volume in his biography of former President Lyndon Baines Johnson. It is fantastic as are the other three volumes that have been published so far.

On page 352 of the book there is a scene in which President Johnson gets angry at Horace Busby. Mr. Busby was a longtime aide of President Johnson. What had Mr. Busby done?  He had questioned the conclusions reached by two economists on President Johnson's staff, Kermit Gordon and Walter Heller. Unlike Mr. Busby, Mr. Gordon and Mr. Heller did not work for President Johnson before he became president. Instead, Mr. Gordon and Mr. Heller were brought into government by President Kennedy. President Kennedy favored hiring people from Harvard because he felt "you can't beat brains."

After the meeting at which Mr. Busby asked his questions, President Johnson berated him with the following:
Here you’ve got Rhodes Scholars and you’ve got Ph.D.s and all like that and . . . you’re telling them that they don’t know what they’re talking about. Don’t you understand? These are the people that Kennedy had in there. They’re ipso facto a hell of a lot smarter than you are.
(emphasis mine). 

This passage came to mind when I read this post by Professor Orin Kerr at the Volokh Conspiracy.  Professor Kerr got his undergraduate degree at Princeton, a masters degree at Standford, and his law degree at Harvard.  As LBJ might say, ipso facto Professor Kerr is a hell of a lot smarter than I am (or Mr. Busby I suppose. But as Mr. Busby is dead it may be unkind to drag him into it).

Professor Kerr is writing to congratulate Sri Srinivasan for being confirmed as judge on the United States Court of Appeals for the District of Columbia Circuit. We blogged about Mr. Srinivasan's confirmation hearings here.

Professor Kerr starts they post by noting that Mr. Srinivasan was confirmed by a vote of 97-0.  Then Professor Kerr writes,
There is going to be a lot of speculation that Srinivasan may be nominated to the Supreme Court someday, so it’s perhaps worth noting that Justice Ginsburg has indicated that she is not going to retire this coming year. If Ginsburg announces her retirement at the end of the next Supreme Court term in late June 2014, however, Srivinasan [sic] would have served slightly over a year on the DC Circuit. By comparison, Justice Thomas served 16 months on that court before being nominated to the Supremes.
(emphasis mine). What is the point of comparing Mr. Srinivasan to Justice Thomas in that sentence? They are not the same age. They did not go to the same schools. They do have in common that they are married, breathe air, walk upright, eat food, and are non-white.  But those would be silly things to on which to base a comparison. And many of those things are true for all of the justices. I thought maybe Justice Thomas has the least amount of appellate experience on the bench prior to being named a justice.  However, Justice Kagen was never a judge prior to joining the Supreme Court. So it does not seem like a comparison of experience levels.

But maybe it is.  Maybe Professor Kerr ignored Justice Kagen because he believes that experience being an appellate judge is necessary in order to be qualified to be a Supreme Court justice. Can that be it?

If you want to say that being an appellate judge is a prerequisite for being named to the Supreme Court, you have to overlook that some notable justices did not serve on an appellate court prior to getting appointed to the Supreme Court. Among the justices without prior judicial experience serving during my lifetime:  William Rehnquist, Hugo Black (the justice who invented originalism), Bryon WhiteLewis Powell, Earl Warren (whose appointment President Eisenhower later said was his biggest mistake. Maybe Professor Kerr agrees with Ike about that), Thomas C. Clark (President Truman notably called Justice Clark his biggest mistake. Maybe Professor Kerr agrees with President Truman about that), Abe Fortas (who resigned in disgrace but not one related to the fact he had not been on an appeals court). So kind of a mixed bag but I doubt any more of a mixed bag than justices who had served as appellate court judges prior to being appointed to the Supreme Court. Certainly there are justices on that list who conservatives admire and ones that liberals admire.

The other thing I thought was this. Presumably no one expects people appointed to a circuit court of appeals to need experience on an appellate court prior to being named a circuit court judge. So why would experience as an appellate judge be seen as a requirement for being named to the Supreme Court? The vast majority of cases that are decided on appeal are heard by circuit courts not the Supreme Court. So for the vast majority of litigants in federal court, the court having the final say on their case is not the Supreme Court but an appellate circuit court. One could argue that we should be more concerned about appellate court appointments than appointments to the Supreme Court.

Update:  After I wrote this post, Emily Bazelon wrote a piece on Slate about why President Obama should do more to try to fill appellate court judicial vacanices. We have expressly criticized Ms. Bazelon's legal punditry skills here and done so by implication here. However, on the issue of the importance of appointments to the appellate court, I think Ms. Bazelon is correct. Whether President Obama is making good use of his appointment power is a different question

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