The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday, the Senate Judiciary Committee held a hearing on the nomination of Allison Jones Rushing, a nominee to the U.S. Court of Appeals for the Fourth Circuit. Rushing is 36 years old. If confirmed, she would be the youngest confirmed circuit judge in over 15 years. I don't think I have met Rushing, and I don't have any particular views about her nomination specifically. But Rushing's nomination does raise a recurring question of broader interest: How young is too young to be a federal court of appeals judge?
I have a few thoughts on that.
First, I don't think there is an absolute age line that has to be drawn in every case. Everyone is different, and there may be exceptional people and particular windows of time when usual practices can be put aside.
Second, I think the common wisdom that a nominee should be at least around 40 years old is probably a good ballpark default. Part of that is that you want the nominee to have enough legal experience not to be green. You want them to have a rich understanding of the law that years of experience in the law can bring.
With that said, I'm actually somewhat skeptical that experience is the central issue. Years of experience doesn't always translate to a wealth of diverse experiences from which broadly applicable lessons have been learned. Any judge who is named to the bench without experience will quickly get experience on the job. Finally, I think a lot of the work of a federal court of appeals judge—not all, but a lot—is the kind of law nerd work that can be done well even without a lot of experience. Experience is important, but I'm skeptical that it's really the key issue.
In my view, the biggest concern with young judges is less experience than arrogance. Federal court of appeals judges have a lot of power. Being a judicial-restraint-oriented type myself, I worry about judges getting rather intoxicated with the judicial power. And I would guess that there is some correlation between the age a person became a judge and how tempted they are to drink enthusiastically from the tap of judicial power.
The thinking would run something like this. A lawyer who becomes a judge at 50 is likely to have a different self-conception than a lawyer who becomes a judge at 35. If you become a judge at 50, you probably had a 25-year career as a lawyer in which you viewed judges as a "them" and not an "us." You watched judges from the outside. And you saw judges make mistakes, and the effect of those mistakes on real people.
If you become a federal circuit judge at 35, however, you're still in the process of forming your professional identity when you don your robes. At 35, you have life tenure. At 35, you'll probably be a federal judge forever. At 35, you'll always have a fresh set of law clerks every year. At 35, you'll always be fawned over in the legal world.
When all this happens at a young age, I worry, there's a natural inclination to self-identify as innately "all judge." Being a judge becomes who you are. That appointment certificate on the wall becomes a core part of your identity. And I worry that you lose the external perspective on your work and the skepticism about judicial power that may come with a career spent elsewhere before getting Article III power.
This is a worry rather than a certainty, of course. As I said earlier, everyone is different. Some people are more susceptible to my concern than others. And I don't think this translates to a particular number being the "right" number. We can't say definitively that 37 is too young but 39 is totally fine. Adults are not like little kids, who are often at noticeably different stages from year to year. But I think this a signficant reason why we should be concerned generally about young court of appeals judges.
Finally, as I noted at the beginning, nothing here is meant as a commentary on Allison Jones Rushing specifically. People I know and respect have raved about her (including Kannon Shanmugam, her co-worker, who himself would be a fantastic pick for a federal circuit judgeship). And Rushing has an extremely impressive resume. So I don't know whether these concerns apply to her case specifcally. Instead, I am just using the debate over her age as an opportunity to work through some of the broader issues about who should be eligible for judgeships.