Judicial Experience and Judicial Selection

A thought in response to Josh.

In his post on why a President or Governor might select a judicial nominee who has no prior judicial experience, Josh suggests that it may be because you can get better insights into the non-judge's views of the law based on the cases they have litigated as a lawyer:

One possible reason is that lawyers get to pick their cases. By contrast, lower court judges can only decide the cases that come before them, and in most cases, are constrained by stare decisis. Their opinions are not a reflection of their personal views, but--or at least should--follow the law. Advocates, especially those who engage in strategic litigation, are differently situated. They can advocate for their bona fide conception of the law, and are not subject to the same constraints. In many regards, non-judicial experience may be the most useful metric for how a judge will decide cases. This dynamic may not always be the case, especially for lawyers in government service. There was a time when John Roberts signed a brief calling for Roe to be overturned, and we al know how Dobbs turned out. But on balance, the cases a lawyer takes, and the arguments he advances, is a useful predictor of judicial behavior.

I am skeptical that this is the typical reason. Even people with prior judicial experience were non-judges once.  And if the cases a lawyer litigates are revealing, presumably the Presidents and Governors would want to pick among older candidates with more litigation experience who have really had the chance to pick their cases.  I gather that is not happening, though.

It seems to me that the more common reason Presidents and Governors pick someone with or without experience relates to the politics of confirmation.  It's mostly a question of math.  How many votes do you need to confirm your candidate, and how many do you have? If you need the votes of wary legislators or even legislators from the other party to get your nominees confirmed, picking nominees with prior judicial experience can give those legislators comfort and maximize your odds of getting the nominees through. You can point to how well respected the judges already are, and you can show the record they established.  On the other hand, if you walk in with all the votes you need already, you don't need to go with someone who is already a judge.  You can pick the person you want.

Comments

[Martinned]

Or, the other way around, it might be easier to get the votes you need if the nominee doesn't have a history of judgments where they were forced to follow precedents that the majority in the legislature doesn't like. It might be easier to get the guy nominated who argued against the right to abortion than the woman who rejected that argument because of controlling precedent.

[Stephen Lathrop]

Professor Kerr — Or, you can pick the person you want, for whatever cockamamie reasons your constituents want—or even, lately, for the reasons you have told your constituents to want.

Government-malleable media adapt politics to protean reasoning.

[ReaderY]

More fundamentally, the less connection to the “deep state” your candidate has, the more confidence you have he will rule the way you want based on loyalty to you,

[Joe_dallas]

That obviously works both ways. Look at the consistent voting block of sotomayer, kagan, jackson (formerly with ginsberg, breyer, etc)

[Lee Moore]

I agree, but I think you're saying it wrong. Plus or minus the sarc, Reader Y is saying that candidates lacking a connection to the "deep state" are more likely than those that do have such a connection, to rule the way conservatives are likely to want.

But that's not something that works both ways - deep state connected candidates will be just what liberal appointers will be looking for - they're more likley to rule the liberal way. So a deep state connection will help you in California, Illinois, NY etc, but hurt you in Texas, Florida, Tennessee etc.

Horses for courses, hacks for benches.

[dwb68]

Blackman lives in a strange universe where nobody had to compromise to get Justice Barrett confirmed, and also she's way too liberal, influenced by Kagan, lol.

Remember that time Bork got...well, borked? "Kavanaughed" doesnt quite have the same poetic ring. Also, Kavanaugh survived.

Any nomination boiles down to: the cost of the ensuing spectacle, versus the reward.

With No track record how someone sees the law is uncertain. I'd suspect nominations of litigators are political favors.

[Jon S]

"Strange universe" is polite for "has no idea what the f--k he is talking about." I love that he says "lawyers get to pick their cases." Spoken like someone who has never really practiced law. With the exception of rainmaker partners at law firms, lawyers do not really get to pick their cases. Government lawyers and public defenders don't. Service partners and associates at law firms don't pick their cases. And most working lawyers with their own practices or small practices just take the cases that come to them.

[Jaypd]

I appreciate that occasionally Volokh lets the other authors point out that Josh is an idiot, but maybe the real answer is to stop offering him a soapbox that makes it seem like you share his stupidity.

[OriginalArgument]

This doesn't seem incompatible. Isn't Blackman's post an argument for why governors would *want* to appoint lawyers (provided they can get them through), whereas your argument just says that they might be harder to get through?