Federal Judges, In-House Counsel, SCOTUS, Supreme Court

On Judging Judges

In-house columnist Mark Herrmann offers his views on the evaluation of judicial nominees.

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dartboard pen on target inside straightI hate it.

Every time there’s a Supreme Court nomination (or occasionally a federal appellate court nomination), pundits root around through the potential judge’s past to assess the person’s political views. And the pundits always look at the wrong stuff.

Here’s my thesis: People are people. They do what people do. And people’s choices often do not reflect political views.

You’re coming out of law school. You’re hoping to land a prized federal appellate clerkship. Are you thinking about politics? Maybe. Maybe you have a slight preference to work for a liberal or conservative judge. But you also want to work for a judge who has a great reputation for training his or her clerks, or letting them work reasonable hours, or being a feeder to the Supreme Court, or whatever. And you have no idea which judge, if any, will pick you for a clerkship. So you apply to many, across the political spectrum.

Someone accepts you! Do you now collect job offers and pick your preferred judge? You do not. When I went through this process (a million years ago), when a judge offered you a clerkship, you accepted in that very phone call. Anything else might offend the judge, which would have cost your school any chance for landing a clerkship with that judge for years into the future.

Maybe the judge who accepted you was liberal; maybe the judge was conservative. It didn’t matter: You said yes.

You apply for a Supreme Court clerkship. The word on the street is that you apply to all nine justices. That both increases the odds that you’ll be accepted and avoids the chance that you’ll somehow give offense by not applying to justices whose political views you disagree with. You just apply to them all.

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Someone accepts you! Do you now collect job offers and pick your preferred justice? You do not. You accept the clerkship that you’ve been offered and pop the champagne. Politics are irrelevant; you landed a Supreme Court clerkship!

Coming out of your clerkship, you accept a job with some big firm, because big firms pay clerkship bonuses, and they supposedly give you the best training, and you’ve got law school debt, and joining big firms is what everyone else is doing, and you’re young and you follow the herd.

The big firm assigns you to some nasty case: You must defend a corporation accused of contaminating the environment, or producing a product that injured people, or doing some other unspeakable thing.

Do you decline the work? You do not. Young lawyers at law firms are in no position to pick and choose assignments. They accept the work that they’re given. Not only that — it turns out that the corporation has some plausible defense; or the newspapers have it all wrong; or the corporation is guilty as sin, but your job is just to help the company get out for a fair price, anyway. This doesn’t mean that you’re a conservative; it means that you’re a person.

Or maybe you don’t take a job at a big law firm. Maybe you ignore the herd; you apply for jobs that may get you trial experience. You apply for jobs as both a prosecutor and a defender. Your motivation isn’t politics; it’s trying a case. You get the job! You’re going to be a federal defender! But while you’re at the defender’s office, you’re asked to defend some guy who committed a heinous crime. So you do. Because the Constitution says that the guy gets a lawyer, and you’ve been picked for the job. You don’t decline it.

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(I once worked with a person who was asked to be an expert witness — not a lawyer, but a witness — for the twentieth 9/11 hijacker. He declined the job. The judge called him on the phone: “It’s our job to give this man a fair trial, and I intend to do that. That means that he’s going to get the best expert witness available; that’s you. You may not like working with this guy, but I want you to take the job, and I want you to do everything appropriate to help defend him.” My guy relented and took the job. And that was a mere witness — who had no constitutional duty to act. The case for the lawyer to represent the evil client is far stronger.)

Years later, when you’re a distinguished member of the bar, you get asked to argue a case in the Supreme Court. You’ll be defending a conservative position, or a liberal one — I don’t care. Do you think, “I’m not sure about representing a person in this situation; let me think about it and call you back later?” You do not. It’s a Supreme Court argument, for heaven’s sake. It’s the first one your firm ever landed; or it’s the fiftieth one that your firm landed, but it’s the first one that came in to you personally; or whatever. It’s a chance to argue in the Supreme Court and, since cert has been granted, you know there’s a plausible position on your side. (The Supreme Court doesn’t grant cert in the easy cases.)

You take the case; you don’t think about politics.

And then you’re nominated to be a judge (or justice) and the pundits start investigating your past. You clerked for a liberal judge, or a conservative justice. You defended a big corporation, or a heinous criminal. You argued the liberal (or conservative) side of some case in the Supreme Court. Therefore, the pundits, conclude, you must be X.

Not true.

For the things you write voluntarily in your life — articles, for example, which you’re not duty-bound to write — perhaps you can draw some conclusions about a person’s political beliefs. Since you weren’t duty-bound to write those words, they might reflect your political beliefs. But again, I wouldn’t be so certain. For some people — professors, for example, who can write about any subject they choose — an article might reflect the person’s politics. But for the average Joe — a lawyer who’s just trying to earn a living, and thus writes an article adopting the position of those likely to retain him — I wouldn’t even put too much credence there. (More credence, maybe, since the lawyer wrote the words voluntarily, but it’s hardly a sure thing.) It’s true that the lawyer wasn’t compelled to take the position he did (which would be true if he were an advocate), but the need to generate business might indirectly force him to publish words with which he disagrees. I know that offends the purists in my audience, but I’m just trying to tell it like it is.

You may be able to judge a professor by her articles. You can certainly judge a judge by her earlier opinions.

But judging a practitioner by the life that she lived? Gimme a break.

Mark Herrmann is Vice President and Deputy General Counsel – Litigation and Employment at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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