Courts

From Laid-Back Law Student To SCOTUS?

You don't need to be a gunner to wind up in the running for a Supreme Court seat.

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Judge Raymond M. Kethledge (by Abdul El-Tayef/WPPI)

When you imagine Supreme Court justices back in their law school days, what springs to mind? You probably imagine the future SCOTUS member as a total gunner, more Tracy Flick than Elle Woods — always prepared, always well-dressed, and always with their hand in air.

For those of you who were slackers in law school but now aspire to judicial office, here’s some inspiration. It comes from Judge Raymond M. Kethledge, the esteemed Sixth Circuit judge, noted author, and possible Supreme Court nominee (a finalist for the seat now held by Justice Neil M. Gorsuch).

Last month, Judge Kethledge gave a speech at his alma mater, the University of Michigan Law School. The speech is now available online, as a Vanderbilt Law Review article. It begins with this anecdote about a Commercial Transactions class that Kethledge took with Professor James J. White:

At the end of class, Professor White chose three panels of three students apiece and told each panel to prepare an opinion on the issue and to read it to the class the next day. I got picked for one of the panels and then somehow got the task of writing up our opinion and reading it to the class.

What I wrote up by hand at 7:15 a.m. the next morning was more “talking points” than a judicial opinion, but I figured I could just wing it from there when I presented to the class. Well, when I got to class I knew I was in trouble when I saw that the other eight students on the panels were wearing suits, whereas I was wearing jeans and a t-shirt. And then I saw that the other two panels had printed out copies of their opinions, indeed enough for the whole class, whereas I had my sheet from a legal pad.

So I sat up on this very dais with two students from the other panels, feeling a bit like Bill Murray in Caddyshack, as each of them read their panel’s opinion. Then I stumbled through mine, saying something like, “The creditor can’t recover here because, you know, he didn’t perfect his interest, so, you know, he loses.”

At the end of that performance Professor White nodded rather gravely and said, “Mr. Jones and Ms. Smith, I see that you have copies of the opinions you’ve prepared, so please distribute those to the class.” Then he turned to me and said, “Mr. Kethledge, what have you got there—scraps of paper?” I think I said, “It’s actually just one piece of paper,” but that didn’t do me much good.

Props to Judge Kethledge for the Caddyshack reference and self-deprecating humor. Some federal judges can be a bit stuck-up, trying to project perfection at every turn, but not RMK. As I can attest based on having interviewed him at length, Judge Kethledge is extremely likable, humble, and down-to-earth — a real mensch, who would be a great addition to SCOTUS.

As you’d expect in a speech entitled “Ambiguities and Agency Cases: Reflections After (Almost) Ten Years on the Bench,” Judge Kethledge followed this story with scholarly reflections about statutory interpretation, Chevron deference, and related subjects. For highlights, see the discussions by Alison Frankel for Reuters and Professor Chris Walker on Twitter, which do an excellent job of summarizing, analyzing, and challenging his remarks.

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Frankel and Walker focus on Judge Kethledge’s substance, but I most enjoyed his style — clear, conversational, compelling. And funny. Check out his description of working on legislative history as an aide on Capitol Hill:

[O]n one occasion I wrote part of a committee report for legislation that, as it later turned out, did not become law. The experience was rather like being a teenager at home while your parents are away for the weekend: there was no supervision.

And here’s his discussion of statutory ambiguity:

In my own opinions as a judge, I have never yet had occasion to find a statute ambiguous. In my view, statutory ambiguities are less like dandelions on an unmowed lawn than they are like manufacturing defects in a modern automobile: they happen, but they are pretty rare, given the number of parts involved.

Professor Walker wonders how a judge with almost a decade on the bench has never found statutory ambiguity, which is certainly a fair question — but I was more focused on that superb simile. Judge Kethledge’s touting of the rarity of automobile manufacturing defects is a nice little shout-out to his former employer, Ford Motor (where he worked as an in-house lawyer before taking the bench).

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Judge Kethledge and Judge Brett M. Kavanaugh (D.C. Cir.) are widely regarded as two frontrunners for the next Supreme Court opening — especially if it’s the seat of their former boss, Justice Anthony M. Kennedy. But somewhat surprisingly, given his indisputable brilliance and impeccable conservative credentials, Judge Kavanaugh did not appear on the first two SCOTUS shortlists that then-candidate Donald Trump issued on the campaign trail.

Some wondered whether Judge Kavanaugh, a Yale College and Yale Law grad who has spent most of his (extremely distinguished) career in and around D.C., was too “East Coast” and “Establishment” for populist, Trumpian tastes. Judge Kethledge, in contrast, is a lifelong Michigander and graduate of the University of Michigan for both college and law school — an elite school, to be sure, but also a state institution in the “Big Ten” athletic conference (yes, I had to Google that).

Judge Brett Kavanaugh is now back in the running for SCOTUS, showing up on the Trump Administration’s latest list of contenders. But I can’t help wondering whether Judge Kethledge, in this next part of his speech, might be trying to subtly remind President Trump that he, unlike Judge Kavanaugh, comes from “the American heartland — the REAL America that lives outside of the D.C.-media fantasy bubble”:

Around this time of year I like to hunt for grouse (or partridge, as we call them in Michigan) with my son in the forests Up North. Sometimes the birds are in cedar swamps that are full of alder bushes and dense secondary growth. More than once I’ve decided that, even if the birds are in there, it’s not worth pushing through all those branches to get to them. Interpreting statutes like the Clean Air Act is often similar. The statute presents a dense undergrowth of sections and subsections and subsections within those. The answer to the specific question in the case might lie somewhere in those sections and subsections, but working through them is hard.

Comparing convoluted statutory language to underbrush encountered while hunting  — another wonderfully vivid comparison from Judge Kethledge. But my main takeaway was: he HUNTS! With a GUN! Like a REAL AMERICAN!

To me, an effete New Yorker, chasing wild animals around the frozen Midwestern wilderness with a loaded firearm is the last thing I’d be caught doing. But for Judge Kethledge, it’s apparently fun — and quite possibly his ticket to SCOTUS. Maybe it helps to be a “gunner” after all.

Ambiguities and Agency Cases: Reflections After (Almost) Ten Years on the Bench [Vanderbilt Law Review]
The (other) attack on Chevron deference [Reuters]

DBL square headshotDavid Lat is editor at large and founding editor of Above the Law, as well as the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.

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