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Thursday
Mar052009

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.  

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