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.
Best,
Ben
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.
Ambassador to the Lost Tribes of the Amazon maybe?
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.
Nothing makes law instructors intrinsically qualified for the bench. Indeed, much about academic cloistering makes such appointments particularly worrisome.
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"?
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?
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?
More here and here.
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?
Said staffer or friend might be better at grammar, though.
'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.
Should John Yoo be unopposed?
Bybee is a federal judge.
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.
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.
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.
I hope not.
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.
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".
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...
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.
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.
I agree that all professors are qualified to be JusticesThe first post should say "I agree that all professors are NOT qualified for the Supreme Court"
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.
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.
But, on the off hand that this non-agression pact is implemented, John Yoo for 9th Circuit!