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May 27, 2011

Does the ages of federal judges impact sentencing jurisprudence and decision-making?

The question in the title of this post is prompted by this new Slate commentaryheadlined "Not Getting Any Younger: President Obama's penchant for older judges scuttled Goodwin Liu." Here is how the interesting piece starts:

Goodwin Liu is out. Nominated to the 9th Circuit Court of Appeals more than a year ago, Liu was filibustered by Senate Republicans.  This week, he asked President Obama to withdraw his judicial nomination.  Critics in progressive circles have charged Republicans with hypocrisy over use of the filibuster.  But Liu's nomination was always vulnerable to obstruction, and not only because of his political or judicial outlook. His age was a crucial factor. Had Liu been 59 years old, instead of 39, he would not have been filibustered.

Consider that Liu was the President's youngest judicial nominee — younger than the next oldest nominee by nearly four years. And given his relative youth, he would have been an obvious candidate for elevation to the Supreme Court. Even if he weren't elevated, he might well have spent the next 30 to 40 years serving on the 9th Circuit.

Aside from Liu, none of President Obama's nominees to the federal appellate courts are under 40. Only two are under 45.  On average, Obama's nominees are more than 54 years old, which is four years older than the nominees under Presidents Ronald Reagan, George H.W. Bush, and George W. Bush.  But the averages tell only part of the story. Consider these statistics: Of the 50 youngest appellate judges nominated since the Reagan administration, 41 were tapped by Republicans.  Of the 30 youngest judges, 28 are Republican nominees; and the 18 youngest are all Republican nominees.  By contrast, if you take the 50 oldest judges nominated since Reagan, nearly half of them were nominated by Democrats.  For decades now, and as a matter of strategy, Republicans have been nominating younger judges.  The real question is why Democrats have been doing just the opposite.

What Democrats seem to have missed is that judicial age matters.  The list of the 50 youngest appellate judges appointed since the Reagan presidency — all nominated under the age of 45 — reads like a Who's Who of most accomplished federal judges of our time: Alex Kozinski (nominated at age 34), Frank Easterbrook (36), J. Harvie Wilkinson (39), Samuel Alito (39), Douglas Ginsburg (40), Clarence Thomas (41), and Richard Posner (42), to name just a few.  That list also includes rising conservative stars appointed by George W. Bush, including Neil Gorsuch (nominated at age 38), Steven Colloton (40), Jennifer Elrod (40), Brett Kavanaugh (41), Raymond Kethledge (41), and Jeffrey Sutton (42).  By this point in his first term, President Bush had nominated at least a half dozen judges who were 42 years old or younger. But President Obama has nominated just one: Goodwin Liu.

Especially while I am still relatively young (I have a few more months until I will age out of the group of persons "42 years old or younger"), I can see the virtue of this call for younger nominees.  And yet, especially when I take off my relatively-young-guy hat and put on my sentencing-observer hat, I am not sure youth is always a virtue when it comes to the development of sound sentencing jurisprudence and decision-making.  I thus am interested to hear if commentors have a view as to whether the wisdom of age or the freshness of youth seems to be an important attribute in judicial sentencing decision-making.

May 27, 2011 at 09:07 AM | Permalink


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Judge Colloton is only a rising star if the sole requirement is never meeting a government argument he didn't love. His record of sentencing issues he endorsed that the Supreme Court ultimately reversed is shockingly poor for a rising star. He has gone the opposite way of virtually every Supreme Court sentencing decision from Booker forward that reversed the government.

Posted by: Steve Prof | May 27, 2011 9:44:36 PM

Oddly missing from the list is Bill Pryor, who took his seat on the Eleventh Circuit a few months short of his 42nd birhtday.

Pyror was recess appointed by President George W. Bush, then confirmed as part of a deal ushered in by the then-famous Gang of 14. The other two appointees who got seats under that deal were Priscilla Owen and Janice Rogers Brown.

Pryor is a superb judge, and would be my choice for the first available Supreme Court appointment by the next Republican President.

Posted by: Bill Otis | May 28, 2011 11:58:57 AM

The three most liberal judges in the federal system are Stephen Reinhardt, Boyce Martin and Gilbert Merritt. They were all appointed by former President Carter in the late 1970's. There's your answer.

Posted by: DaveP | May 29, 2011 11:20:49 AM

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