The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Audition Trap
When I write something controversial, I expect blowback. My recent posts about Justice Barrett were no exception. I received the usual smattering of criticisms, telling me that I have no business being a law professor and that I am an embarrassment. Another burner email account urged me to kill myself by swallowing cyanide. But one charge, though predictable, was especially misguided: that I write what I write as part of some "audition" for some other position.
This charge is not limited to me. For example, after Judge Ho's interview with me about birthright citizenship and invasion, there was a torrent of press about how Judge Ho was reversing his position as part of an audition for the Supreme Court. The headlines followed the same template: Judge James Ho Kicks Off The Auditions For Trump's Next Supreme Court Pick; Judge James Ho Uses Fifth Circuit Decision To Audition For Supreme Court. Again; James Ho's Post-Election Remarks Fuel Supreme Court Speculation; This Is What Happens When Judges Audition for Trump's Supreme Court; and so on.
There are several problems with the "audition" charge.
First, the "audition" claim primarily works to resolve some cognitive dissonance. I would like to think that even the most vigorous critics would acknowledge that I, and Judge Ho, have some intellectual acumen. We aren't idiots. In other words, the things that we write are not based on poor analytical reasoning or lack of legal rigor. Rather, the critics charge that we write what we write in spite of our intelligence. They can't possibly agree with what they write. In other words, because no intelligent person could possibly believe what Ho and Blackman think, they could only reach that conclusion for ulterior motives--namely, an audition. At bottom, this is a charge of bad faith: that we write what we write not because we think it is the right legal outcome, but that we are using our platforms to seek some higher office. Thus, the "audition" claim settles that cognitive dissonance. There is also Occam's Razor: the most likely explanation why we write what we write is that we actually believe what we write.
Second, the "audition" claim is irrefutable. Once a person is labelled as an auditioner, everything they do will be seen as an attempt to audition. If they act in a moderate fashion, they are doing so to avoid drawing attention, and helping their candidacy. If they act in a radical fashion, they are doing so to draw attention, and help their candidacy. Auditioners are trapped in a vicious cycle. (More on that below.)
Third, I suspect nearly everyone is guilty of auditioning at some point in their careers. Every student who develops a relationship with a professor does so knowing that professor can serve as a reference. That isn't to say students are behaving in some poor fashion by developing that relationship, but the consequences of that decision are foreseeable. Every junior associate who seeks to move up in a law firm will constantly be auditioning--either by laying low or standing out, or a combination thereof. The human condition is to rise. What makes charges against people like me or Judge Ho more salient is that we write publicly. Most of the things people do to audition are hidden to the world. But every word I write is read, scrutinized, and (invariably) twisted out of context. (One person who sent me an irate email about ACB apologized after reading what I had actually written.) The fact that everyone auditions demonstrates why this charge is so common. As a general matter, people project onto others the flaws they see in themselves. If you accuse me of auditioning, you can be pretty sure this is something that you have done in the past. Think carefully.
So how do I respond to the charge of auditioning? As I noted in Point 2 above, the claim cannot be refuted. Indeed, critics will likely see this denial of auditioning as further proof that I am auditioning. I can't win. But I'll still try.
No one tells me what to write. I do not look at social media, so I do not know what other people are writing. I write about the things that I feel may not be otherwise discussed. I write what I believe to be true. And I do not write what I do in the hopes that it may lead to future employment. I am a tenured professor, and hold an endowed chair, at a law school that I love. I treasure my colleagues, and look forward every day to working with our dedicated students. We are accomplishing some great things at the South Texas College of Law Houston, which I hope to talk about in due course.
To be sure, early in my career I thought I would be happier by transferring to a "higher ranked" school. Lots of elites told me that I would never get ahead at South Texas! I applied to more transfers than I can count, but due to a host of factors (ideological bias most prominently) none of those moves worked out. Yet, I long ago realized that the grass would not be greener, and I am blessed to be where I am. I now get feelers from other schools, which I promptly decline. The hiring chairs are shocked that I wouldn't even consider the move, or even a visit. I reply that I am quite content where I am. At some level, I think they are jealous. The truth is, I don't need the approval of some higher-ranked school to improve my value. The elites were wrong.
Beyond academia, by any objective measure, I do not think my record makes me a viable judicial candidate. I've criticized and attacked more people than I can count. And I've taken legal positions in my scholarship, and in litigation, that would put me far outside the legal "mainstream." As an amicus, I told a federal judge that Morrison v. Olson should be overruled! You just don't do those sorts of things if you want to get ahead! I've done the exact opposite of what the three Trump appointees did prior to their elevation. If one were to be auditioning, they would follow the paths of least resistance that past successful nominees traveled. Moreover, if one wants to become a judge, government service would be useful. But I haven't sought any position in the administration, in part, because I think I can do far more for the constitutional rule of law in my current station, and also I love what I do.
All of these things are true. But none of this will not assuage anyone. Critics will say this is but an elaborate ruse to increase my chance of some higher office. Like I said, I cannot win. It's the audition trap.
