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December 16, 2008

A modest(?) proposal for filling the bench from the ivory tower

Law prof Carl Tobias has this new piece online at FindLaw that is sure to get the law professor blogs a buzzing. Titled "Why Barack Obama, as President, Should Nominate Leading Law Professors for Seats on the Federal Appeals Court," this essay certainly gets my endorsement as long as some profs with criminal justice backgrounds are among the short-list mix.  Here are a few excerpts from the short piece:

President-elect Barack Obama will receive much advice in the coming months. One valuable idea that his nascent administration should embrace and implement is nominating legal scholars to serve on the United States Courts of Appeals.  Numerous legal academics are particularly well-suited to discharge the critical responsibility of delivering appellate justice.

President Ronald Reagan used this concept to excellent effect over both of his administrations. The chief executive searched for, identified, and appointed many highly-respected legal scholars to the appeals courts.... Yet selecting legal academics for the appellate courts apparently fell out of favor in the administrations of Presidents George H. W. Bush, Bill Clinton and George W. Bush. To be sure, these chief executives did choose a few legal scholars, but they were notable exceptions to the rule....

President Obama has vowed both to practice bipartisanship and to appoint excellent judges.  One fertile source of nominees who possess the requisite expertise and temperament to be outstanding appellate jurists is the faculties of the 200 American law schools.  Because legal scholars' work closely resembles that of circuit judges, choosing academics will allow President Obama to select candidates who are essentially known quantities, and to be confident that they possess the skills necessary to be distinguished federal appeals judges.

I obviously have a parochial and personal interest in endorsing academics who have criminal justice backgrounds when thinking about judicial appointments.  But the important reality of heavy criminal law dockets in the federal appellate courts (especially outside the DC Circuit) undercuts somewhat the assertion by Tobias that "legal scholars' work closely resembles that of circuit judges." 

I fear that too many modern legal scholars, perhaps especially many modern constitutional scholars, tend to give far too little attention and thought to a broad array of criminal justice issues that regularly occupy the day-to-day work of the federal judiciary.  Put another way, I fear that too many criminal justice issues tend to get second-class treatment in the modern legal academy.  I would hate to have a federal appellate bench filled with academics inclined to give criminal justice cases second-class treatment on appeal.

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I think one academic with serious criminal background who should be considered by Barack Obama as a Federal Judge (even for the U.S. Supreme Court) is well known Prof. Stephen A. Saltzburg of George Washington University Law School in Washington, D.C. He graduated first in his class at Penn. Law School, and clerked for Justice Thurgood Marshal on the U.S. Supreme Court. He has previously worked in the D.O.J. and was an Ex Officio member of the U.S. Sentencing Commission, in addition to private practice reprentation, teaching and writing about Criminal Law, Criminal Procedure, Evidence and jury Instructions. For 2008, he was the chairman of the ABA Committee on Criminal Justice. He is one of the most highly qualified in America.

Posted by: Jim Gormley | Dec 16, 2008 11:07:45 AM

"I fear that too many modern legal scholars, perhaps especially many modern constitutional scholars, tend to give far too little attention and thought to a broad array of criminal justice issues that regularly occupy the day-to-day work of the federal judiciary."

But that is not necessarily a bad thing. The key is to evaluate the situation of the judiciary as a whole. It would be just as wrong headed to have a judiciary without any legal scholars as it would be to have a judiciary full of them. The goal is to get a representative mix; no one person has all the answers. I don't have a problem throwing a few more legal scholars into the pool if that is an area where the system as a whole could use some help. But as I have stated elsewhere, I also hope that Obama looks beyond the confines the legal system itself to add some "new blood" to the judiciary.

Posted by: Daniel | Dec 16, 2008 11:22:11 AM

Another crim-law prof with a (somewhat rare) combination of intellectual chops and intellectual humility that would seem to be a recipe for a good federal judge is Bill Stuntz at Harvard. However, he has had health problems (which I feel comfortable mentioning because he has been very open about it) in recent years. I don't know his current status, but if he were up to it, he would be an outstanding, thoughtful choice.

Posted by: Observer | Dec 16, 2008 1:53:17 PM

Please keep these ivory tower nerds off the trial court bench where they would be clueless.What we need on the courts of appeals are more trial court judges that have served with disticntion and understand the real world of civil and criminal justice ...not some classroom where they push around 1L's.

Posted by: Steve S | Dec 16, 2008 2:47:43 PM

Bill Stuntz would indeed make for an extraordinary judge. He has the intellect, the temperament, and the judgment to be a truly outstanding jurist. I cannot think of a professor more suited for the judiciary than Prof. Stuntz. To be fair, though, there are a number of luminaries with a good mix of academic genius and legal experience that would also make fine judges (Orin Kerr comes immediately to mind, though I'm not sure he's likely to be appointed to a judgeship under the Obama administration).

I agree with Daniel, though, that the key is ensuring a good mix of criminal and civil practitioners, academics, and maybe some policy guys.

Posted by: Prosecutorial Indiscretion | Dec 16, 2008 6:29:47 PM

To Steve S., I would note that, if he were to like any nerd, he might like Prof. Stuntz. Stuntz is unusually concerned (for an academic) with empirical studies, knowing as much as he can about how things work in the real world, and understanding the complex, interlocking way that a tweak to one part of the criminal justice system can effect the operation of many other parts. He also clerked for a district court judge (as well as a Justice Powell).

Posted by: Observer | Dec 16, 2008 7:05:32 PM

I also think Bill Stuntz would be a great choice. As Observer prudently notes, it's his rare combination of intellect and humility which would serve the nation well.

Posted by: Steve E. | Dec 17, 2008 9:09:08 AM

The pres.is guided by the info given to him.Not being a law prof and thus infallible,they made an error.Rather than obfuscate or do a "Clinton",the W.H.admitted it and rescinded the decision ...knowing ful well rancid types like yourself wil gloat and preen .
It takes character and integrity to do the right hting.
Would you be upto that Professor?

Posted by: prof.Emeritus M.leonard | Dec 24, 2008 10:03:47 PM

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