October 9, 2005

Lawprofs as Supreme Court justices?

Orin Kerr is talking about whether lawprofs make good Supreme Court justices. That prompted this comment from someone known only as "appellate lawyer":
Some profs would make great judges, but most -- esp. most Con Law ones -- would be horrendous. Most Con Law profs (the ones on VC being notable exceptions) are the most blatant results-oriented types around, with everything else as window dressing.

Aside from that, I have seen pretty many profs jump into appellate briefing on their pet issues. Most stink. Many just like to cite their own articles, and their friends articles, as if that were legal authority.

If I could pick 9 profs from the rare minority of profs, then I could make a Court of them. But if I had to pick 9 random Con Law profs from the top 20 law schools, or 9 random managing partners from the top 20 firms, I'd take the firm crew, with no doubt.
I just want to say that I'd like that to be a reality TV show, like "The Apprentice," not one of the seasons where they have the men's team and the women's team, but one where they divide them up into "street smart" and "book smart" or "corporate" and "creative." Each week, they get their task, a case to decide. Who would be the Donald/Martha passing judgment on their work? On what basis? Maybe a call-in vote, a la "American Idol."


Pat Patterson said...

I'm hoping that in the bathing suit competition Ms. Miers will look better than O'Connell and Luttig.

Troy said...

Dershowitz, Scalia, and you in the "boardroom". You guys can duke it out as to who gets the center chair and can decide it each week.

Sloanasaurus said...

I think I posted this table before:

Justice / Years in Private Practice

Rehnquist/ 16
Roberts/ 12
Kennedy/ 12
Scalia /6
Thomas/ 2
O Conner/ 2
Souter/ 0
Ginsburg/ 0
Breyer/ 0
Stevens/ 0

To be fair, many of the other potential candidates for the latest spot also had private practice experience (edith clement had 15+). Michael McConnel had none and Janice Rogers Brown had maybe a year.

I dont think it matters, but it is an interesting stat.

HaloJonesFan said...

That sounds like a pretty neat reality show!

What would be the title? "Left Brain versus Right Brain". "Brooks Brothers/Birkenstock". "Heart/Smart".

Heck, that last one might work out...you have a team of art- and humanities-major students, and a team of engineering students. Each week there's a "challenge"; maybe you have to build a bridge from toothpicks (whoever has the best capability-to-weight ratio wins), or write a poem, or put on a play in a public place (whoever draws the biggest crowd wins), or create a computer simulation of a black hole eating a star cluster (judged both on technical correctness and artistic merit.)

And, to throw a bone to our hostess, the two teams could argue a pair of criminal cases, each taking one side (prosecution/defense) for the first case, and the other side for the second.

madcat said...

Lawyers who (by definition) frame their work in terms of zealous advocacy for their clients and (as with Miers) are known for their unwavering loyalty are less results-driven than constitutional law professors? Feh.

Con law profs win. Hands down.

JSU said...

Seriously, this is a great idea. Call Mark Burnett!

Miers can be one of the stars after her nomination flames out.

Jacques Cuze said...

I would like to see lawyers as modern day gladiators.

Toss em in a ring, and let em fight each other to the death.

I would pay for the 24x7 channel that showed this. All lawyer deaths all the time.

I wouldn't watch it, but I would pay for it.

Goesh said...

-some would look real hot in black-

Bruce Hayden said...

I went into more depth at Volokh.com. But the conceit that Con law expertise is the absolute most important requirement for a Supreme Court Justice is just that, a conceit.

A lot of what the Supreme Court does is statutory interpretation, and that often affects us a lot more in our daily life than does its Constitutional Law decisions. Indeed, their Festo patent law Doctrine of Equivalents decision affects my daily life, as a patent attorney, than almost any Con law decision they have made in recent years - and, indeed, probably than even Roe v. Wade, even if Freakonomics is right on the crime decline connection.

So, why should we believe that a Con law prof, for example, would be better able to come up to speed in an arcane area of the law, like patents or tax, faster than someone who has spent her life doing that, esp. since the former tends to specialize at the expense of learning to generalize.

Also, a lot of what it seems like Con Law profs write seems more like attempts to move the law than really analysis of what the law really is. Yet, a lot of this seems to be divorced from reality, except the reality of other, most often equally liberal, Con Law profs.

What they don't really face is the constant feedback that many top lawyers get in having to put their careers on the line when they argue a case. Missing, misapplying, or misunderstanding applicable precedent can be fatal. So, they learn to do it right. Not so with tenured faculty.