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.

Some recent related posts:

• How a new administration is likely to impact federal sentencing practice
• Why federal sentencing reformers must focus on the USSC and lower courts
• Looking at control of federal prosecutors as we look toward a new administration
• Are we on the verge of a new changed era concerning federal sentencing law and policy?
• "Smart on Crime: Recommendations for the Next Administration and Congress"
• What might a new administration mean for the federal death penalty?  
• FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"