How Young is Too Young to Be a Federal Court of Appeals Judge?

Experience versus attitude.

|The Volokh Conspiracy |

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.

Advertisement

NEXT: Congress Needs an Opioid Intervention

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. I would say that, if you’re concerned with judicial arrogance, you probably want to directly look for arrogance, rather than using age as a proxy for it. Because older judges are quite capable of being arrogant.

    1. Thanks, Brett, for the comment. Given that the quality is one that will develop in future decades, how do you test for that at the time of nomination?

      1. That’s a good question, which I don’t really know enough about the topic to tender an informed suggestion, beyond that people go on as they start: The best sign that somebody will be arrogant would be that they’re already arrogant. Interview people they’ve worked with.

      2. Accuse them of high school gang rape πŸ™‚

      3. Interview the people who work or have worked for them. A partner who has a habit of throwing fifth-year associates under the bus to cover for mistakes might not be great judge material.

      4. I am not sure that it is a quality that will only develop in future decades. A doctor with a poor bedside manner is immediately identifiable as an intern – and only very rarely gets better. Like any other interview that needs to evaluate for personality traits, look for examples in prior behavior even if it’s not the exact situation that will exist in the future.

        For example, to evaluate for behavior when in power, look for examples from when the person was in power in different situations? What was their behavior when they were the assigned leader of a project team in college? How did they as captain of their sports team or patrol leader of their Scout organization? If a parent, how do they behave toward their own children? Do they lead a charitable organization and what is their leadership style in that role?

        It is rare for someone even of the moderate age of mid-30s to have never been in power in any capacity. I’m with Brett. If you want to evaluate for a potentially problematic personality trait, evaluate it as directly as possible. Age alone is a poor proxy.

      5. Start by coming up with an objective metric for “arrogance”. Note, it doesn’t have to be what everyone agrees is “arrogance” as long as you operationally define it for your purposes. The metric should help with this definitional part.

        Second, go collect data. Score current judges on “arrogance”.

        Then run an analysis of their “arrogance” scores vs. your suspected correlation variable (in this case, “age at confirmation”.

        This won’t tell you what *causes* “arrogance”, but it should help identify which variables can be dismissed as unrelated and which warrant further study.

        So this enough, testing for different hypothesis variables, and when if you can’t prove causation you’ll develop a profile that is likely to lead to “arrogance”.

        At that point, you can begin the longitudinal studies in which you once observe and track judges over time. This will have two primary purposes. First, to test the predictive power of your hypothesis, and second to collect data on the hopes of identifying additional factors.

        1. You mean, apply actual social science techniques rather than conjecture or anecdote? Pshaw, that’s crazy talk.

        2. How about this judge? Is she arrogant enough?

          1. Crazy more like it!

  2. I am not an attorney, so don’t have any actual experience, but as someone who reads a lot about law, I would think that age (as a proxy for experience) would be more important to trial judges that have to deal with a lot more complicated issues and are bombarded with lots of legal claims/issues (which, on appeal, are usually narrowed to just a handful) that can, typically, be considered after months of briefing and with consultation with fellow judges that are deciding the case. For appeals court judges, the breadth of knowledge and critical thinking skills would (IMO) be the more important factor. Arrogance is a personality trait, not a judge-specific trait, and doesn’t necessarily correlate with age. Based on her Williams & Connolly profile and a few news bios, it seems like she has a lot of appellate experience and has been a clerk to three judges, including Justice Thomas and then-10th-Circuit-judge Gorsuch and a D.C. Circuit Judge, so she should have a great understanding of the appellate process/role of judges.

    1. I’ve often said recent law school graduates are better qualified to sit on the Supreme Court than to practice in traffic court.

      1. True. Much of the course of study in law school is reading and digesting appellate cases. The technicalities of procedure, as well as as pleadings and other documents have to be picked up in active practice.

      2. “I’ve often said recent law school graduates are better qualified to sit on the Supreme Court than to practice in traffic court.”

        Ideally, you wouldn’t need to be a law school graduate to do either one.

        1. Ideally. And yet, I do think there’s something to the idea that unless you’ve seriously learned about and thought about and (usually) studied law, you are more likely to just reify your own policy preferences and prejudices as a judge, than to dispense fair and impartial justice. There are a lot of people of partisan persuasion — even persuasion I would agree with! — who do not have a mindset capable of understanding the limited role of a judge, nor carrying it out without tipping the scales in favor of plaintiffs or defendants they do or do not like.

    2. I agree with this. JPs and magistrates are the ones who can put people directly into jail, at least temporarily, in a snap decision tied to a temper tantrum, personal animosity, or obsession with being respected. By the time you get to an appellate court, the options available are more limited, there is more time to reflect and calm down before issuing a decision, and there are often other judges involved.

      1. Orin is worried about arrogance toward attorneys, not defendents.

      2. Orin is worried about arrogance toward attorneys, not defendents.

  3. Maybe the fact that she didn’t attend Harvard or Yale LS will tend to temper her youthful arrogant impulses.

    1. She went to Duke. You view that as a positive? πŸ™‚

      1. You’re not going to get many appeals court judges who went to T3 law schools, but some representation beyond Harvard and Yale might be nice. You may or may not have ever noticed, but people who went to Harvard or Yale tend towards arrogant, before they’ve even graduated.

      2. Branching out from Harvard and Yale is a positive.

  4. Prof. Kerr,

    Why is arrogance a worrying factor (from a technical sense which is I think how we’re looking at this)?

    We don’t worry about arrogance in presidents and legislators–who have equal power/authority.

    1. “We don’t worry…”

      We don’t, eh?

      1. I highlighted I meant the technical aspect–which Prof. Kerr seems to be discussing.

        Not the person’s general mien.

    2. Lifetime tenure is an important distinction between them, though. A politician who becomes destructively arrogant can be voted out of office. We’re stuck with judges for the long term, and the very fact that they know it’s a lifetime appointment can contribute to the arrogance.

      1. ” A politician who becomes destructively arrogant can be voted out of office.”

        Being voted out of office doesn’t mean a politician can’t still be arrogant, and destructive to the (re)public as a whole.

      2. Judges can be removed.

        1. Judges can be removed, but not just for arrogance. I don’t agree with an age test myself, but it always makes sense to be extra-sure you want something when you don’t have the option of easily removing it later.

          1. “Judges can be removed, but not just for arrogance”

            Nor should they be removed for just arrogance.

  5. I suggest another axis for consideration: generational identity. If you want too great an age as a qualification, you pretty much lock in an expectation that perspectives and interests unique to younger adults should never become factors in judicial outcomes. Maybe there is no reason to want that, especially if you buy the balls and strikes theory of judicial practice.

    But if you think, as so many do today, that the judicial branch is inescapably a political branch, maybe it’s not so good. Should courts be structured formally to endorse the mostly older-generation-favoring outcomes the political branches customarily deliver?

  6. “How young is too young to be a federal court of appeals judge?”

    She is old enough to be President. The Founding Fathers felt that was old enough for the most important job in the government.

    Seems good enough to be one of hundreds of judges. She will sit on a a panel of three so does not have sole decision making authority anyway.

    1. I agree. While it’s not a hard requirement like Senator or President, I agree that 35 is a good line to draw for a judge. Like our elected representatives, most are significantly older, but under 35, I have to question whether it’s reasonable.

    2. “She is old enough to be President. The Founding Fathers felt that was old enough for the most important job in the government.”

      I suppose true, but reality/the voters have been a bit more stringent. The Youngest to serve as president was Theodore Roosevelt at age 42, but he was sworn in after the assassination of William McKinley. The youngest person elected to the office of POTUS was JFK at 43.

      1. The Founders didn’t place an age requirement for the judiciary. It’s almost like they didn’t think age was an important qualification for judicial work, and that judges should be selected based on other criteria.

        1. “It’s almost like they didn’t think age was an important qualification for judicial work”

          Or they thought it was so obviously important that there was no need to constitutionalize it because the nomination/confirmation process would inherently provide the necessary age filter.

          1. So your working theory was that a minimum age requirement was so self-evident they left it out of Article III, but not so self-evident that they left it out of Articles I and II?

    3. In 1787, life experiences were probably a bit more “character-building,” plus life expectancy back then was 38 years!

      1. No, in 1787 the span of a man’s years were threescore and ten, as they have been for most of history. You’re confusing the odds of childhood mortality with lifespan. If (and back then it was a BIG if) you make it out of childhood, you probably had a nice long life ahead of you, as long as you managed to stay out of any land wars in Asia.

        1. Yep, historical “average life expectancy” figures are heavily biased by high childhood mortality. What we probably need is figures for “average life expectancy after 18”, how long can you expect to live once you’ve made it to your 18th birthday.

          1. Not to mention deaths by women due to childbirth.

            1. When Reagan and Mondale ran against each other and age issues came up, someone pointed out that Reagan’s life expectancy was only a year or so less then Mondale’s, despite the significant difference in age, mainly because Regan had gotten out of his 60’s without a fatal heart attack or cancer while Mondale hadn’t yet.

  7. This whole post reminds me of a fading veteran complaining about a hotshot rookie.

  8. Two words: Richard Posner.

    This isn’t meant to pick on Orin, but I love how baby boomers have decided age is important as they get older. Patrick Leahy was 35 when elected senator. Orin Hatch was 43. Chuck Shumer was 31 when elected to the house. Bill Clinton was 33 when elected governor, 46 when elected president.

    If you want to focus on judges, I just did a little research and found several judges appointed by Jimmy Carter who were under 45 when appointed (Lanier Anderson, Mary Schroeder, Boyce Martin, Carolyn King). But now that there’s someone just a few years younger than that appointed, and I’ve suddenly heard about concerns over ages.

    Frankly, I’m much more concerned about judges who are too old and out of touch to be effective.

    1. Personally, as I’ve gotten older I’ve become more convinced there should be a maximum age for public service, or at least an age at which “neurological health” is added to “good behavior”. I’m coming up on 60, and I can tell I’m not quite as sharp as I used to be. It’s brought home the reality of neurological decline with aging.

      1. “I’m coming up on 60, and I can tell I’m not quite as sharp as I used to be.”

        Another thing we agree on!

        1. Keep in mind that I’m not as sharp as *I* used to be. I’ve got a quite a long decline ahead of me before I catch up to you. πŸ˜‰

          1. Brett Bellmore with the thread winner. πŸ™‚

            1. No need to throw false plaudits at him until he gets near the end of his decline.

      2. ” It’s brought home the reality of neurological decline with aging.”

        Law (and its close cousin, politics) is one of the few occupational areas where people can and do work until they drop dead.

    2. “This isn’t meant to pick on Orin, but I love how baby boomers have decided age is important as they get older. ”

      No worries, especially as I’m 47.

      1. Which is Gen X, of course. Everybody knows that baby boomers don’t trust anybody over 30.

      2. As I’d expect from a slippery baby boomer, you imply but don’t deny.

        If Jim Mattis can be a Democrat, you can be a baby boomer.

  9. Rather than age, should a federal circuit court judge nominee be required to have a certain amount of experience as a federal district judge.

    What is the general breakdown of historical circuit court nominees experience in terms of;academic, legal practice, state trial judge, state appellate judge, federal district judge?

    1. “Rather than age, should a federal circuit court judge nominee be required to have a certain amount of experience as a federal district judge.”

      No. Elevating a state court judge, for example, might be an appropriate choice, or (gasp) an academic or a practitioner. A broad experience is probably better than a narrow one, and the experience of being a district court judge doesn’t even translate to appeals.

      Anecdotally, I am 100% sure it is possible to point out trial court judges who excelled as appeals court judges, and some who should never have been elevated. Equally sure that it’s possible to find people with no experience as trial court judges who made excellent appeals court judges, and some who never should have been seated on the bench.

      Ultimately, there’s no sure way to be certain of what you’ll get from any nominee, until they’re seated, and then lifetime appointment, so you adapt to what you got.

      1. No. Elevating a state court judge, for example, might be an appropriate choice, or (gasp) an academic or a practitioner. A broad experience is probably better than a narrow one, and the experience of being a district court judge doesn’t even translate to appeals.

        Not on matters of substantive law, perhaps — but on matters of procedure, it does. It’s a lot harder to decide, e.g., if a trial judge properly issued sanctions or made an evidentiary ruling if one has never presided over litigation. (Of course, appellate courts mostly ‘solve’ that by applying the abuse of discretion standard and then approving all such trial court rulings, but…)

        1. ” It’s a lot harder to decide, e.g., if a trial judge properly issued sanctions or made an evidentiary ruling if one has never presided over litigation. ”

          I don’t think this is true.
          Trial court judges have to make such decisions on-demand, or close to it, for most instances but appeals court judges have plenty of time to research and ruminate, and they get briefed on the issues by the parties, and they can confer with colleagues. In the trial court, the ability to make a ruling immediately (or very quickly) is crucial. In the appeals court, the ability to make a ruling immediately is not even viewed as an asset.

      2. Actually, having been a district court judge is a tremendous boon to a circuit judge. He or she will actually have had first-hand experience making the kinds of decisions to which varying degrees of deference are given on appeal and will understand the time and other pressures that surround the making of those decisions. That breathes life into what otherwise may well be empty recitations of standards of review. That said, I agree that it should not be a requirement.

        1. “Actually, having been a district court judge is a tremendous boon to a circuit judge”

          I’ll buy “slight advantage”. I’m not buying “tremendous boon”. The biggest plus is probably already knowing your way around the federal courthouse.

  10. This sets her on a solid track to become a Supreme Court Justice.

    1. Nominated to the bench by Donald Trump might not be an event looked on favorably by future administrations.

      1. I’m sure the Pence administration won’t mind all. πŸ˜‰

        1. Perhaps, but that won’t help if the next openings don’t show up until the start of the Warren administration…

          1. Meh, never in a million years will Warren grace the Oval Office. For that matter, neither will Pence, but that was part of the joke.

            More likely, Trump fatigue sets in about year 7 of his two terms, and a centrist Dem like Jim Webb comes along and wins with a return to normalcy. Nothing wrong with wishful thinking about Warren though.

            1. “never in a million years will Warren grace the Oval Office. For that matter, neither will Pence, but that was part of the joke.”

              You don’t have to explain my joke for me, thanks.

              “Nothing wrong with wishful thinking about Warren though.”

              You’re free to dream wishfully of Warren, if you’d like to continue to do so. She’s smart and capable, and therefore unacceptable to the people at one end of the political spectrum.

      2. And that would be their loss. God knows Trump has his weaknesses ? lots of them. But, so far at least, judicial nominees have NOT been one of them.

        1. You seem destined to hate the future at least as much as you have hated the most recent five or six decades of American progress.

          1. Do you mean the last five or six decades during which, despite spending trillions of dollars on LBJ’s War on Poverty, the rate of poverty in the United States has stubbornly refused to decline, even though it had been steadily declining at a rapid rate BEFORE all of those misguided social welfare programs? Do you mean the last five or six decades during which the Federal Government poured billions upon billions of borrowed dollars into education, all while student achievement scored were flat or declining, and while public education in the inner cities completely failed, dooming millions of African Americans to an uneducated life of perpetual poverty? Boy, Rev., you sure have a very odd definition of “progress.”

            1. ” the rate of poverty in the United States has stubbornly refused to decline”

              The DEFINITION of poverty has certainly changed. For example, during the LBJ administration, the ratio of households that had access to broadband Internet to those that didn’t was 0/100.

        2. “God knows Trump has his weaknesses ? lots of them. But, so far at least, judicial nominees have NOT been one of them.”

          Amongst the non-judicial nominees, there have been what some might consider “too many” guilty pleas for assorted wrongdoing.

  11. Looks like for most of those deciding (and commenting here as well) character and concomitant attributes are of marginal import compared to proper ideology.

    1. For a substantial subset, “proper ideology” is an element of “character” in that it is impossible to have good character with incorrect ideology.

      1. And vice versa – if you have the correct ideology, that’s all I need to know about your character.

        There’s always been some element of ‘my side is always virtuous, your side is always evil’ but these days it’s getting a bit out of hand even around here.

        1. Both “sides” are evil. Support the middle!

          1. It’s all part and parcel, eh? My judges right or also right comes from the same place as commenters making death threats and insisting I’m secretly thinking death threats at them.

          2. I’ve come to refer to myself as a “radical centrist.” I’m for burning both wings down.

            1. The amusing part is, of course, that centrism and nihilism are also both super lame and facile.

              Pick the party that best serves your principles, just don’t defend it as always the best, nor the other party as nothing but evil knaves who know you’re right but lies about it on accounta the aforementioned evil.

              1. Says the douchebag pretending that most of the people deciding (and commenting) about the judges only care about ideology.

                1. Do you think I defend Dems as always correct, jph? Or find that conservativism is always wrong?

                  I do enjoy how many on here keep insisting I’m a partisan cartoon merely because I often disagree with them.

                  1. “I do enjoy how many on here keep insisting I’m a partisan cartoon merely because I often disagree with them.”

                    You are such a fucking moron. I’m not calling you a partisan cartoon because you disagree with me. I’m calling you a partisan cartoon because your first impulse is to accuse people who disagree with you of operating in bad faith, like you did in this very thread. No engagement, no evidence of critical thinking, just mindless drivel about the nefarious motivations of people who disagree with you.

                    And then your pivot to sanctimony is the absolute cherry on top.

                    1. You don’t seem to know what bad faith means. I don’t think anyone is lying, just that their priorities aren’t where they think they are.

                      You should get your blood pressure checked, though.

                    2. Oh, I see. They aren’t lying. They’re just too stupid to know where there priorities are. Good thing noted mind reader Sarcastr0 is here to save us all.

              2. And what if I decided that both major parties serve my interests equally terribly, just in different ways?

                Both major parties are mostly (not nothing but) evil knaves.

                They can’t know I’m right. 1) I can’t know I’m right, so how can they. 2) They don’t know what I think and they aren’t interested in finding out.

                1. An important distinction – the evil knaves are the politicians, not the voters. I, and you, are not generally arguing in bad faith. That is, however, arguably what we hire politicians to do.

                  If you find both parties equally unsuitable, that’s quite a coincidence! Or, you aren’t really trying for function, but rather prefer to proclaim how you are too pure for faction.
                  Which is, as I said, lamer than actually claiming a faction but being clear-eyed about it.

                  I agree with your last paragraph, which is why I’m alternatively irritated and bemused by how many here accuse liberals of arguing in bad faith for something they know is wrong on everything from immigration to originalism to gender.

                  1. “If you find both parties equally unsuitable, that’s quite a coincidence!”

                    Why?

                    Let’s take federal spending as an example. Both parties want to increase government spending (just on different areas). There is no area of government where I don’t think they are already spending too much and should cut back significantly (some areas could be outright eliminated at the federal level) . So how does either party come close to my interests on spending?

                    1. You choose a convenient granularity – just ‘do I like their spending or not.’ Whereas an actual evaluation would look at how much they effectively spend. Or, if you’re being really strategic, the cost-benefit of their spending AND taxing policies.

          3. “Both ‘sides’ are evil. Support the middle!”

            The people too timid to pick a side? Or the people who partly agree with both “sides”?

          4. “Both “sides” are evil. Support the middle!”

            Both sides are the lesser evil.

            Support Cthulhu, the Greater Evil.

    2. “proper ideology”

      Don’t blame us, your side made federal courts the battleground to push your version of change.

      How many pro-lifers get nominated by Democrat presidents?

      Now, when the right does the same things the left has done for generations, its bad.

      1. The right keeps saying that, but they have an odd selective memory about Bork, who was pushing some serious change.

        ‘You liberals are so bad you made me throw away my principles’ is what many call a self-own.

        1. “The right keeps saying that, but they have an odd selective memory about Bork”

          I’ve noticed a tendency towards short-memory syndrome… an inability to remember things that happened more than an election-cycle ago. The thing is, even as their strategy changes, the rhetoric doesn’t. So, they’ll raise taxes, and spend like a sailor on a 24-hour shore liberty, then whine about the “tax-and-spend liberals”.

          So when they complain about activist judges while endeavoring to seat their own activist judges, you have to wonder whether it’s because they’ve just forgotten what activist judges are and why they used to be against them, or if it’s just “it’s not bad when WE do it, only when THEY do it”.

    3. Interesting. I don’t see ideology mentioned anywhere in any of the comment strings above. The closest I see to any partisan comments at all do not occur until the JoeGoins branch of the conversation immediately above.

      All the prior threads seem to me to be rather clinical discussions about the suitability of age as a proxy for character with no special reference to this particular candidate or equally impersonal discussions about the desirability for other forms of diversity (such as having a degree from someplace other than Yale or Harvard).

      Are you projecting your own biases, Sarcastr0? Because I do not see your claimed evil in the comments above.

      1. The excuses being provided don’t seem a bit…motivated to you? Certainly the enthusiasm to dismiss Prof. Kerr’s concern doesn’t seem to be arms-length engagement with his thesis.

        In other words, I find it interesting you see something clinical in the discussion.

        1. re: “The excuses being provided don’t seem a bit…motivated to you?”

          No, not at all. Nor, by the way, do I see any enthusiasm to dismiss Prof Kerr’s concerns. On the contrary, the threads above seem to take the concern (judicial arrogance) as a given (and from the examples offered, a bi-partisan one) and are instead about the weakness of age as a proxy for that concern.

        2. No, but you characterizing them as excuses seems entirely motivated by your partisan bias. Once again, instead of engaging with what people say you simply resort to assuming that anyone who disagrees with you is operating in bad faith.

          1. Oh, I’m a partsian, and no doubt biased. But did you happen to notice the partisan valence of everyone who had concerns with Kerr’s argument? It’s not alone determination, but I saw one exception to that rule – good on ya, apedad!

            1. Who cares what their partisan valence is? This is just a fancier way of saying that people that disagree with you are operating in bad faith.

              1. You keep repeating the same thing, as if that will make it true.

                Look, it’s a simple, observable fact that people who disagree with me are wrong. They just are. A good many of them are quite happy to remain wrong, some in quite strong language even. Some of them ARE a bit sensitive about being wrong, and you can see it in their responses, because they switch from addressing the comment to lame ad hom attacks, and other similar types of emotional crybabyism. Who cares? People who choose to be wrong will happily continue to choose to be wrong. If I’m lucky, they’ll do so in a way that amuses me.

              2. I never said bad faith, I don’t doubt y’all believe age doesn’t matter for a judge. I also think the reasoning looks quite motivated.
                And lament how much more so it has gotten in recent years.

                The left is getting there, but judges-justify-the-means is very much a creature created by the right.

                1. “I never said bad faith”

                  Yes you did.

                  “I don’t doubt y’all believe age doesn’t matter for a judge.”

                  Who said age doesn’t matter for a judge? Find me one example.

                  “I also think the reasoning looks quite motivated.”

                  Of course you do. You can’t help yourself.

                  1. I’m calling them as I see them. Aren’t you doing the same, or are you arrogating to yourself the cocksurity you accuse me of having?

                  2. “Who said age doesn’t matter for a judge? Find me one example.”

                    Well, I did.

                    Then again, I’m an anti-partisan.

                    1. He was just being pedantic because I said age and not youth.

                    2. No I wasn’t you fucking moron. I notice a complete lack of examples in your response.

        3. “The amusing part is, of course, that centrism and nihilism are also both super lame and facile.”

          Definitions are key, and “centrism” is malleable. I call myself liberal, but I’m not sure centrist is inaccurate.

          As between Democrats and Republicans, I reliably vote Dem. But in an ideal world I’d be voting for candidates committed to mutual respect and collegial temperament, irrespective of ideology. I think we’d get better governance out of a bipartisan coalition committed to empirical best practices, than from either of the left-right teams, each of which is beholden to a base increasingly motivated by personal animosity for its opponents.

          In other words, I’ll take Left over Right, but I wish there was a non-ideological alternative that purged tribalism, not ideological impurity. Is that centrist?

          1. You aren’t wrong, centrism is at least as maleable as any of the other political brands floating around these days.

            For my purposes, I’m making a policy distinction, and not talking about methods and demeanor.
            I find it useful to put mutual respect and collegiality on a different axis from left-right. A radical/moderate axis. Though IMO that axis is not orthogonal to the left-right one these days – you and I look like we agree that the right is currently more radical than the left, although neither is doing great these days.

            I am by temperament pretty moderate, although contrarian. That being said, I also find empty paeans to decorum to be lacking; it’s a complicated world out there!
            History has shown us that radicalism has it’s place in creating good in this world. And decorum does not exist in a vacuum, it will get beaten by a critical mass of opposing radicalism a troubling amount of the time. To use an extreme example, principled decorous Germans ended up being complicit.

            1. “I find it useful to put mutual respect and collegiality on a different axis from left-right. A radical/moderate axis.”

              The challenge with this is that the same word appears at one end of each axis, even though the ideas/concepts for the ends of those axes are quite different. That word is “conservative”. A “conservative” person who dislikes large change from status quo might share very little in common with a “Conservative” who wants to upend all the social changes of the last several decades.

  12. if the purpose of judging is to play an ecumenical function in society, the system of Dalai Lamas doesn’t seem to have turned out too bad πŸ˜›

  13. Some folks, like King Lear, grow old before they grow wise.

    Others are wise at a young age.

    You pays your money* and you takes your choices.

    *Metaphorically, that is

  14. I am now of an age when at least half the judges I appear before are noticeably younger than I am.The subtle and not-so-subtle flattery that I could lavish on my seniors doesn’t work with these damn kids. If I can’t figure something else out, I may have to retire soon.

    1. Something something Pokemon?

      1. Just not Pokemon-go-to-the-polls.

        Oy.

        1. PokeSufferage!

    2. Tell them how much you love Taylor Swift’s latest song.

    3. What up, my judge! I just wanted to lay it out, this court is lit. I feel very awoke today.

      1. Get off of my lawn!

  15. If that’s your worry, why not create a quick metric for “arrogance”, apply some elbow grease and do a quick study to see if age-at-appointment correlates to “arrogance”?

    This is a solvable question, you don’t have to worry. You can know.

    1. why not create a quick metric for “arrogance”

      Do you work for the government?

      1. Someone suggests using the scientific method to test your assumptions and *that’s* what you jump to?

        1. Ginning up a metric is not the scientific method, it’s the bureaucratic method.

          Don’t assume quantifiability and go from there, or else things get silly very fast.

          1. If you don’t assume quantifiablity, all that’s left is to either throw up your hands, or just pretend you’re reasoning about the problem.

            1. Don’t assume quantifiablity is not the same as always assume unquantifiability.

              But to just say ‘the solution is quantify arrogance and then do a study’ is starting from a number of assumptions that are not at all supportable.

              Blind metric-based policies make for a very bad one-size-fits-all time.

          2. I supposed that gets to the fundamental problem with lawyers.

            They’re satisfied with “I know it when I see it”. Engineers say “if you can’t give me a metric, you don’t know what you’re talking about”.

            1. I’m a physicist turned lawyer turned bureaucrat, and all I know is I see way too many engineers trying to take social stuff and treat it like a RLC circuit or something.

              It’s not always a bad analogy to make, but those who always jump right to the metrics usually cause more trouble than their worth.

              1. How do you read RLC? I feel like it should be “an RLC circuit”, resistor-inductor-circuit sounds too clunky.

                1. I think the c is for capacitor.

          3. Creating a metric to measure something is the most basic practice of science that exists.
            Metrics aren’t perfect, but it’s having taken the act of attempting to objectively measure something that moves a conclusion from ‘opinion’ into ‘science’ in the first place.

            1. “When you can measure what you are speaking about, and express it in numbers, you know something about it, when you cannot express it in numbers, your knowledge is of a meager and unsatisfactory kind;”

              ? Lord Kelvin

            2. Creating a metric has lots and lots of places to inject bias. Assuming that having a metric makes you objective is a bad mistake.

              1. “Metrics aren’t perfect”
                It seems almost as if you didn’t understand what I wrote, on top of failing to understand anything about science.

                There is only one subject that has not known bias – mathematics. Only there can pure ‘truth’ exist.
                You are trying to pretend that an objective numerical measure is WORSE than no measure, just because the measure isn’t perfectly unbiased. This is either utter ignorance, or utter duplicity.

                Either way, you are wrong.

                1. If only there were other descriptive modes than straining to quantifying something and nothing at all…

                  Have you spoken to a social scientist? They’ll tell you it’s not engineering – lots of room for qualitative analysis as well. I’m still trying to figure on that, but one thing I do know is that saying ‘the way to solve this problem is make up a metric you think describes your concern and measure it’ is some facile ridiculousness.

                  Math is fine; we’re not talking about anything nearly that pure, though. I did some time in thermodynamic cosmology. Lotsa math, but those pesky observations we kept referring to left lots of room to insert bias.

                  1. “Have you spoken to a social scientist? They’ll tell you it’s not engineering”

                    And if they were being honest with themselves, they would tell you it is mostly bull shit.

                  2. “Have I spoken to a social scientist?”
                    I taught ‘social scientists’. Even there, everything is measured. Percentages, trends, patterns – these things are measured, counted, and analyzed. This is what turns sociology from a collection of stories into a science. Without the metrics, it isn’t even a soft science.

                    To put it mildly, anything you can come up with that isn’t measured isn’t a science. Even history and anthropology rely on metrics – frequency, similarity, etc.

                    1. For my sins, I go to social science summits. And from what I hear, quantifying everything has been recognized as a mistake for at least a couple of decades.

                      I think you’re mixing up being quantitative with being predictive.

                    2. And again, we’re back to the beginning: Science is about making predictions.

                      If you disagree, please describe a science that does not make predictions, and does not use metrics.

                    3. So now I have two theses.

                      1. You do not need metrics to make useful observations about the world. For multiple reasons (hiding bias, failure of function), knee-jerk ‘lets make a metric’ causes more problems than solutions.

                      2. Not all science need be predictive. Falsifiability is great when you can get it, but there is a space for descriptive and even explorational science as well.

                    4. And you are moving further and further away from ‘science’.
                      Observational science requires measurements. Otherwise, your “observations” cannot be applied to anything else – there’s no learning or knowledge gathered; just an opinion by some guy.
                      I don’t know what you think “explorational science” is, because it isn’t a real thing. A quick search online shows no hits.

                      Predictive capability is required for reproducability. If you cannot reproduce your results, it isn’t science.
                      Objective measures are required for reproducability as well. If someone else can do the same thing you do, or see the same things you see, but come to a different conclusion, it isn’t science.
                      Falsifiablilty is a requirement of any scientific experiment, but not of observational studies.

                      I’ll ask again: Please tell me of any science that does not use measurements, and does not predict something.

                2. You’re creating a false choice between slamming everything into a metric and not observing anything at all. There are lots of ways to deal with the world that are not pure cold equations.

                  And I say that as a physicist who loves me some cold equation – when they apply.

                  1. “You’re creating a false choice between slamming everything into a metric and not observing anything at all”

                    There are observations that are binary, either observed or not observed. Science is about predicting what will be observed.
                    I predict that the sun will set in the west tonight. Note that it is not necessary to measure exactly WHERE in the “west” it will set, nor what time “tonight”, nor even what, exactly, constitutes a “sunset”. You will either confirm my predicted observation, or there’s something wrong with my theory of a spinning spherical Earth.

              2. “Creating a metric has lots and lots of places to inject bias.”

                True. But not bothering to create a metric and making conclusions without them is not exactly the way to avoid bias…

                1. Function before bias – the creation of a metric is not the right tool for every situation – check you assumptions to validate that you’re not just creating nonsense for the sake of boasting ‘I have a metric.’

                  And then even when it comes to bias metrics can be a trap – as can be seen here they create an overconfidence about one’s lack of bias that may make you end up being much more committed to your sense of objective correctness than you might otherwise be.

                  I see it all the time – metrics someone thinks captures something does not, or does so incompletely, and now you have policies based on blindly following something unreal. I’ve had to put out are ‘shame lists’ based on org’s failure to follow a metric that is in reality something they have limited control over.

                  Great example – public school testing. Following the metrics end up with loads of crappy incentives and in the best case you just teach to the test. And studies show that trying to figure out metrics for who is a good teacher and rewarding/punishing accordingly don’t seem to create good outcomes for students.

                  1. Psychology already have a very good metric for the big 5 personality traits, tested and tested again. For all the problems with replication in shitty psychology tests, these five traits are useful and can be used to adequately describe personality.

                    Openness to experience
                    Conscientiousness
                    Extraversion
                    Agreeableness
                    Neuroticism

                    There’s no reason not to think that a decent “arrogant” trait can’t be teased out, when it’s already accounted for as low conscientiousness.

                    1. You seem well informed, so I’m sure you know that a very good metric in psychology isn’t going to allow for the predictive engineering-esque study EscherEnigma was so breezy about.

                      The ‘adequate’ traits took a while to tease out, and are still in some ferment from what I understand (you may know more; I’m a mile wide and an inch deep on this as in all things; neuroticism is a new one on me). It doesn’t seem to be a stable ground to build a descriptive-predictive composite metric on to me.

                      ‘there’s no reason not to think’ is a bit of a jump, isn’t it?

                    2. On psychology literature, not so much, but enough to know that, yes, it is possible to create scales of traits that can be reliably measured. Arrogance, or at least what is colloquially defined as arrogance (which would be an inflated sense of self-worth) can be measured in some semi-reliable manner.

                      The thing is, though, is that much of the Big 5 data comes people taking surveys…I doubt that a judicial nominee will answer a survey, and if they did, that they would answer it honestly. So we would be twice removed from actually measuring “arrogance” if we tried, and we would be measuring a proxy based on some external criteria. Some criteria, we would find, are perhaps not good proxies. As Brett first pointed out, youth is not a good proxy for arrogance. Youth is perhaps a better proxy for excessive confidence not tarnished by life’s grittiness.

                      I’m sure it’s worth a try though, and I bet it’s already been done if I took the time to go to JSTOR.

                    3. I think we’re roughly on the same page, though in the specific case that Prof. Kerr is talking about, he did make a decent qualitative case for concern in the specific situation of appellate judgeship. It’s a cost-risk, and not a determinative one, but I don’t think it’s one that can be as easily dismissed as many on here are trying for either.

                      Semi-reliable means a diminished utility for an arrogance inquiry beyond even what you noted, as even the somewhat rarefied audience here looks like they will take it as a gospel that it is not.

                    4. Good points, thanks.

          4. “Ginning up a metric is not the scientific method, it’s the bureaucratic method.”

            Fine. But, uh, not all bureaucrats are government employees. Bureaucracy exists quite happily in the corporate world.

            So, “figure out a way to measure it” isn’t a government-and-only-government response, even for you.

            1. No argument here. Seen dumb stuff in law firms that conforms to that scenario.

              Though I was enjoying poking people on this small with governmental examples. And from what I see they do tend to be a bit more egregious, probably because the private sector is usually based around one clear and legit metric, which will keep things grounded in a way some governmental organizations lack.

              1. “from what I see they do tend to be a bit more egregious, probably because[…]”

                Careful.
                One major difference between public and private sector is that public sector mistakes are freely visible, whereas private sector mistakes can be covered up.
                For example, you often see in the news how a governmental IT project is way overbudget, way behind schedule, and has features that STILL don’t work.
                Private industry is not immune to IT project overruns… far from it. It’s just that they don’t talk about theirs much, and so nobody hears about them outside the company.

  16. At 36, I was a senior litigation associate. Now I’m 59, and work as a lawyer for the federal government. Not only have I seen a lot “legally” that has made me a much better lawyer, but the same also applies to judgments I make in life and my ability to see not only others’ perspectives, but that they are fully as human as I am. This latter thing is not something that crossed my mind at age 36.

    Personally, I think 45 should be the default minimum, absent other indicia of legal and personal maturity.

  17. In 1896 the Democrat Party nominated William Jennings Bryan to be their candidate for POTUS to run against the Republican, William McKinley.

    WJB was born in 1860 and was 36 at the time. He was known variously as “The Great Commoner” or “The Boy Orator of the Platte.” His “Cross of Gold” speech was a plea for free silver, the inflationary currency of the day, which would favor Western state miners and debtors everywhere.

    Filled with boyish energy, Bryan invented the whistlestop campaign tour and delivered nearly 200 speeches in different cities across America. McKinley stayed home and delivered three speeches.

    McKinley. In 1900, they did it again, same result, but McKinley was assassinated shortly afterward.

    WJB was staunchly Christian, staunchly pacifist (as Sec. of State under Wilson he resisted war against Germany to the last) and supported women voting and Prohibition.

    1. Yeah, if anyone speaks for the humility of youth it’s William Jennings Bryan.

  18. But it’s no big deal for the President to appoint his 36 yr old brother who has zero courtroom or judicial experience to be attorney general.

    What is she going to learn in the next 6 yrs at, say, the SG’s office, or as chief counsel at Treasury or for the Senate Judiciary committee that she does not already know?

    1. Based on my experience with these young high-fliers, the answer is “probably not much,” but I don’t mean that as a compliment.

    2. “But it’s no big deal for the President to appoint his 36 yr old brother who has zero courtroom or judicial experience to be attorney general”

      Well, it’s really not, since that’s a political job, and it’s the staff who does all the work (and thus, needs all the experience and qualification). The most important job qualification for the AG is the ability to get along with the President. Ask Mr. Sessions, if you don’t believe me.

  19. This discussion reminds me powerfully of “High Flying Adored” from Evita. A lot of lines in there about the dangers of becoming a sensation at a young age (26, in that song).

  20. Which experience is important – being a lawyer, or being a judge? The sooner you put a person in the actual job, the sooner they become experienced at the job you’re assigning them.

    1. Maybe being a person?

  21. A more important question is how old is too old to be a judge. I’d much rather have 36 year old Allison Rushing on the bench than some octogenarian who went to law school in the 1950s and can’t even stay awake on the bench.

    1. Haha, this is such a lame try at a burn.

      Notorious RBG isn’t my thing, but Lord has she become a talisman of hate for you guys. She isn’t even the most consistently liberal on the Court!

      1. “has she become a talisman ”

        Sure, we started calling her “Notorious RBG” and making movies about her.

        No, wait, that was your side.

        You raise her profile and when she becomes a focal point, its our fault.

        1. The left is indeed being silly, as I acknowledged. The right is being hateful, which is worse.

          A cult of coolness isn’t the same as a cult of personality.

          And your attempt to blame the left for the right’s dumb fury is extra lame this time, as the right was calling Ginsberg a radical drunk way before this notorious RBG was a thing.

          1. “drunk”

            Never heard that about her, even now.

            [Looking it up I see she said she fell asleep at a SOTU because she was drunk. Maybe she ought not to have said that.]

            “cult of coolness isn’t the same as a cult of personality”

            Its close enough. She encourages all the attention and the media pushes it on her behalf.

          2. A cult of coolness isn’t the same as a cult of personality.

            That sounds like a pretty fine distinction.

            1. Not sure I agree. Fanboy != acolyte. RGB ain’t quite first term Obama. Or Trump, for that matter.

              Upon meditating on the question, I’d venture that the distinction is one of scale. No one is saying RGB’s every action is a masterstroke (unlike Trump and Obama), just that in toto she’s great. Neither group is going to win any prizes in an objectivity competition, but has more potential to screw people up than the other.

        2. Anyone here remember the cult of Scalia?

      2. If you don’t confine yourself to SCOTUS, RBG isn’t the only octogenarian on the federal bench, or even the oldest . There is a judge on the Federal circuit who is 6 years older than RGB. There are at least 6 federal district judges 80 or older, two of them are in their 90s (data was from 2017)

  22. Orin:
    You would do well to consider talking to a couple Jerseyites: Andrew Napolitano and Peter Verniero. New Jersey has a rule for its state courts that require the prospective judge to have been a lawyer for at least 10 years prior to appointment. It also has the initial appointment for judges of the Superior Court – the general trial and appellate court – and the Supreme Court subject to a 7-year term, following which the judge may or may not be reappointed, with the reappointment being either a 7-year term or for life. All those appointments are by the governor with advice and consent of the state senate.

    Judge Napolitano was one of the youngest judges in Jersey history, barely getting over the 10 year minimum IIRC. But he was appointed to a trial court (in Bergen County). He had an excellent reputation as a judge, which he earned. He left the bench in the early 90s; according to press reports then b/c he had kids’ college educations to fund.

    Justice (also later AG) Verniero was appointed about 20 years ago to the Supreme Court despite never having written or filed a complaint, a trial court motion, let alone argued in court or tried a case. He caught no small amount of flak over that. It was said at the time his main qualification was having been Tom Kean’s driver. He turned out ok as a justice and as an AG.

    But, as I said, it might do you well to consult with one or both of them to get their thoughts.

    1. Speaking for myself, pushing 60 I see things a whole lot differently than when I was 30. And I’ve seen a lot more, learned a lot more about human nature, and have a much less black-and-white view of things. Age and experience, sitting across the desk from clients and adversaries, and the thinking lawyers do in the middle of the night, will tend to mellow one and make one more thoughtful and forgiving of the foibles of human nature we all see.

  23. She seems to have clerked in the right places and argued appellate cases.

    And don’t I keep reading here and elsewhere that being an appellate judge is easier than being a trial judge?

    I suspect she has seen the judicial warts from both sides of the bench. She will be no more of a judicial putz than anyone else.

    The real question is how we will adjust to a huge cut in salary.

  24. Like most of these young conservatives pushed through the Senate by Republicans under their brand new system, she was raised in a test tube, a conservative incubator, and has no idea of (and no sympathy for) people who are not like her.

    The contrast with (for example) William Brennan, whose father was beaten up by anti-union goons, is about 180 degrees.

    1. FWIW, the union goons are 1000 times more likely to be violent and destructive as those who oppose unions.

      In any case, it’s not a judge’s role to “have sympathy for people.”

      1. I suppose some historian has toted up the casualties inflicted by both sides. I wonder what the numbers are?

        1. No need to wonder.

          If the historian wants the one side to look better, then their numbers will support that. If some other historian wants the other side to look better, then their numbers will support that. And Joe Public will pick which numbers to believe based on which side THEY agreed with.

  25. Rather like wanting a young surgeon and a wizened diagnostician.

Please to post comments

Comments are closed.