What Kind of Judges We Want and Why the Academy Often Frustrates This

Hi Sandy.

Let's put the bone of contention here:  I don't care about prior judicial experience (Scott's post), I care about "intellectual experience" as that is scooped up and trained within legal education. And particularly, what legal education says and does to intellectualism generally. Therefore, what I care most ardently about is this growing idea among "experts" in various academic fields that seem to say that Constitutional decision making is or should be the same sort of cognitive task that one uses, for example, in writing opinion pieces for journalism. That it does not involve anything seriously analytic or anything internally important, and that it amounts, really, to nothing but the expression of a kind of passion -- one's "turn at the bat," so to speak.

Look, if you think that the cognitive traits used in constitutional judging are the same that bureaucrats and policy planners use when rule making in the basement of government, you are going to be a Posnerian and like, e.g., Stephen Breyer. (Whether Mario Cuomo could make a good Stephen Breyer is highly debatable. He's certainly not on the short list). But if you think that constitutional judging doesn't even involve this, but simply is the expression of value choices that those experienced in politics make, you are going to end up with a different work product. Your judges are going to be people like Sandra Day O'Connor and Arnold Schwarzenegger, and the jurisprudence is going to be sort of "feeling oriented." One wonders why Tip O'Neil or Plunkett of Tammany Hall would not be good high Court judges today under this sort of rationalization, while good Presidents would be people with great movie careers.

Look, we have this debate for the other institutions, too. We say, do we want a common-denominator, regular-people presidency (jacksonian, bush), or do we want refined best-and-brightest model (obama and kennedy)? Should the legislature be a politico or a trustee? Should the judge be the Solomon or the problem solver.  

What I think people fail to understand is that Americans don't want a British system. They don't want their constitution to become their Declaration of Independence. They want integrity in the program. They want judges, not politicians. And they want prudent and structured casuistry, not an opinion column. They want the answers to come from a repspectable intellectual constituence -- one they can learn in school and make sense of. They want a Dworkinian. That is, they want the same thing from their judges that they were supposed to get from their clergy, their referees, and their professors.

I think, today, only referees come close to actually doing this, and one wonders if even this is becoming culturally ill. And one wonders to what extent the  political program of the 60's generation isn't partly to blame for what it has done to "education" and to the academy.  

On the Death of Bright Ideas in Legal Culture and How it Affects Who We Want on the High Court

(sent to conlawprof in reply to the suggestion that the Supreme Court would be better off it some non-lawyers were appointed. The theory, I think, is that it doesn't take any kind expertese to be a Supreme Court decider, at least not one that has anything to do with learning legal orthodoxy. My reply now follows).  

... one wonders if we shouldn't just put the lawyers on American Idol and let Paula and whoever that guy is be on the Court. Welcome to American culture.

No, seriously,  anyone who has studied both intellectual history and the relationship of jurisprudence to it, might say the following of Sandy's suggestion that the Supreme Court start including non-lawyers:

1. One of the most unfortunate things that happened to the academy was that those from the 60s generation (and their progeny) who went into liberal arts and legal education ended up wrecking the idea of contemplative epistemology.  One can see a clear symmetry between: (a) the rise of "deconstruction" in the academy in the 70s and the strong program in sociology; (b) the rise of the legal tantrum-schools in the 80s (critical this, critical that); (c) the rise of pragmatism in judging in 90s (posner, breyer); (d) the "attitude scholars" in political science and the otherwise empty theoretical picture that this club labors within; and (e) the people who say "hey let's put Mario Cuomo or George Will on the Court." One is only a breadth away from saying, "hey if if so-and-so can, why not Paula." "hey i can vote too," and why not a telephone bank? What fun it would be to have America call in the winner on the television.

2. At some point in time, someone has to seriously look at the silliness of this entire cultural strand of "thought" -- where it comes from and what are its political objectives. Once subsequent generations see this in proper context, there really can be only one real answer here: the model that should be used for the Court is selecting the best and brightest. And what needs to happen is that legal education either needs to be purged of the forces that obstruct the mind from finding better answers (obstruct the idea of the search altogether), or, perhaps, all appellate judges should be made to have Ph.Ds or some post-legal training of some kind. 

You know, one day, when the American academy awakens again, we may actually find that the Greeks are quite important to western life. We may actually find that contemplative structures are not willy nilly and that they play a vital role in the integrity of structured casuistry. That what we want are  philosophically predisposed, historically astute, legally-encyclopedic people who have gained some practical experience in delivering legal products to people in the system, to fulfill and discharge American government's oligarchic chamber. And that neither wisdom nor virtue comes from a plebiscite or from a theory of decision making predicated upon costumed (robed) politicians selecting their "social values" in a social ritual.

Let's try to go forward and not keep going "south."

Regards. 

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
New Website: http://seanwilson.org/
Daily Visitors: http://seanwilson.org/homepagelucy.html
SSRN papers: http://ssrn.com/author=596860

________________________________
From: Sanford Levinson
To: LAWCOURT-L@tulane.edu
Sent: Thursday, March 5, 2009 11:58:28 AM
Subject: Re: the case against judicial experience

I share both the general admiration for Scott's op-ed and the belief
that it is unfair to pin the overemphasis on "judicial experience" on
Bill Clinton, who is well known to have thought seriously of Mario Cuomo
(who seems to have rejected the entreaties), Bruce Babbitt (who was
derailed because of the belief that it was more important to keep him at
Interior), and, some have suggested, George Mitchell.  It was Reagan,
after all, who appointed exclusively sitting judges, though one of them
was, of course, an Arizona state judge and not a federal judge.

I'm wondering if Scott would agree that the Supreme Court could use not
only someone without "judicial experience," but also a non-lawyer.  I
think one certainly has to be a lawyer to serve on a district or a
circuit court.  I'm not sure why legal training is necessary to be on
the Supreme Court.  Obviously, I'm not talking about nine non-lawyers,
but, rather, the potential wisdom of appointing a single non-lawyer.
Consider, e.g., only Anthony Lewis, George Will, or Walter Murphy, to
name three distinguished commentators who are now, alas, too old to be
considered. 

sandy

When Does a Judge Follow Policy Versus Follow Law?

Dr. Baum:

One of the things that would be helpful in answering the question is if we knew what, empirically, a "policy view" is. Let's say one lawyer believes the constitution allows an abortion and the other doesn't. If a judge is asked to decide this case, what is an example of one using a "policy view" versus using a "legal view," or using a hybrid?  Because it seems to me that this whole way of talking actually does something that it doesn't advertise: it sets forth a normative criteria for "legal." It says, e.g., that formalism is "legal" but sociological jurisprudence is not. Or that originalism counts, but not living constitutionalism. Or perhaps it says that judges who feel sad when they decide "follow law" while judges who feel joyous do not. All of these suggestions fail, of course, because they seem to want to say that casuistry performed by American judges is sometimes legal and sometimes not. You can't really say this. All that can
properly be said is that some casuistry is GOOD, some not.

What I am saying is that the question is both loaded and normative. It would be like asking whether cooks eat good or bad desserts. And then asking of those who are eat good desserts, whether culinary education helped.

Dworkin suggests that justices seek integrity in their casuistry. Might it not be more honest to ask (of your concern) whether there is authority to say that legal education helps judges develop better integrity in their work product? Or might it be more useful to ask not what "policy views" a judge has, but what epistemology his or her framework displays, and how this can be linked to intellectual development?

Your work, of course, is probably the best political science ever produced on the subject of jurisprudence (I don't call it behaviorism in this context). Indeed, one could read Ronald Dworkin and then Larry Baum and not subject the the mind to any major confusion. I remember once feeling this way in graduate school.  But there still is the nagging question of why one should not encourage political science to: (a) stop chasing evidence of ghosts; and (b) start using language sets that are more useful.

There is no such thing as a "policy judge" because there is no such thing as an illegal opinion. There is only good and bad casuistry. The only thing one could ever look for is integrity in the product.

Is Constitutional Design a Philosophy or a Science?

(sent to conlawprof re: whether designing constitutions is a science)

Mark:

.. a couple brief remarks
  
1. If what you say is true -- that constitutional design gets better with age -- are you saying that the constitutions we have today would have worked better in the 1787 culture? Because I think that is quite clearly problematic, given what we should know about law fitting society. It also is terribly presentistic.

2.  It seems to me that out of critical moments in culture come ideas and practices that come to be bellwether to subsequent ideas and practices, until critical moments emerge again. And so if we wanted to critique the California Constitution, we would ask how it fits schematically within the American program (how it stacks up to the fundamentals and development therein), and not assume that subsequent units are better than former ones. Even in automobiles that logic doesn't work (see the Toyota Celica in the 1990s).

3. I'm really confused about the science point. You borrow the language sets of science when you say: "law professor so-and-so has a hypothesis" and "we can test it empirically." I really think it would be more honest to say: X has an idea and we could get some journalism on that. The methods that you are (impliedly) referring to could never provide anything but journalism to the debate. Social science is not a real science, and that is not because its answers are probabilistic. It provides something in the nature of news, that's all. Really it is in best form when it is descriptive.

4. If constitutions are "science," why are not court decisions also? Remember the early 1900s and scientific management (in bureaucracy)? Administer with scientific rules instead of politics? Remember sociological jurisprudence? All of this came about in intellectual culture when scientific positivism was in vogue. I hardly think Warren and anti-Warren constitutionalism represent advancements in science, or that real science offers them any meaningful help. 

5. I think debates about constitutions are ultimately are about philosophy and place in history. The minute you try to say no and study something, you have only hidden the philosophy somewhere. Noziek v. Rawls? Athens v. Rome? Hamilton v. Jefferson? America v. Europe? Constitutional v. Parliamentary? Locke v. Rousseau? Legal v. Hegemonic (written v. unwritten)?  

In a way, what a constitution really is, is a form of life. Therefore, one could only ever say of California that they have an odd form of life and to offer comparison with neighboring forms for purposes of social learning. We would never say "study shows brand x is best." That is sort of the business that got us in the Iraq mess, wasn't it?
 
Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
New Website: http://seanwilson.org
Daily Visitors: http://seanwilson.org/homepagelucy.html
SSRN papers: http://ssrn.com/author=596860

How Violating Clear Legal Sentences is Still Following Law

[sent to conlaw prof re: how it can be "following law" if a judge violates a clear procedural rule in the constitution] 

... I'm not exactly sure I follow Sandy.

You are saying that "following law" means simply following in all circumstances and cases the truth value of sentences with computational grammar (e.g., president shall only take office on January 20). We can agree that these sentences are quite clear in what they assert. But we also must agree that the American legal system has other, no less important, legal sentences that say, in effect:

(a) Marbury rules (the constitutional system is in effect);
(b) any "constitutional" judgment that is not overturned by amendment stands; and
(c) [by implication from the separation of powers rules] that the capital spent on a decision should be affordable in terms of costs (budget reductions, jurisdiction revocation, court packing, long term damage to the court, etc.).

So following procedural grammar in every possible case cannot be a good criterion for "following law" where that means to deactivate other legal sentences. In fact, that is not a distinction; it's a program. If the Court successfully ruled that pre-inauguration was warranted, the decision would in no way be "illegal" because the result violated procedural grammar. In fact to assert this would be to assert only one's philosophy of law (only a different product).

Therefore, because law = substance + remedy, one can never say "did you follow law or policy," but only "was your casuistry good?" That is, would a pre-inauguration decision ever have integrity? To answer this, one would need to examine the circumstances of the casuistry. Have all the leaders been assassinated? Is there a mass death and disease or civil war? What does natural law say about pre-inauguration? You know, children Kings were given regency councils until they reached maturity. Don't rules of survival logically trump rules of procedure? Show me one example (other than bureaucracy) where one follows standard operating procedure over and above survival procedure in times of extreme chaos and threat.

The only question you must ask yourself is: what is your brain doing when it "judges." Is it doing the Sergeant Shultz thing --  "I know nothing ...  I can only read." Or is it doing something else: "meaning is given ordinary sense in ordinary context; meaning is shifted or supplemented in extraordinary context, because this is what the judging brain is for."

If you are a Wittgensteinian, you will see the shallowness of particular language sets (law/policy). If you are a Dworkinian, you will try to make larger sense of what happens after the Ludwig in you has demonstrated this facile grammar. One wrecks the house of cards; the other seeks a new engineering project.