I didn’t see this coming.  And if you don’t slum at the lawprof blawgs, chances are you didn’t either.

Rick Hill over PrawfsBlawg proposes that his fellow lawprofs enter into an agreement, one that would have some fascinating implications for lawyers in the trenches:

Here are the terms of the pact: Law profs agree to support any academic appointment to the federal district or appellate bench, full stop. Left law profs will endorse, say, Professor Doug Kmiec for the Ninth Circuit when a Republican occupies the White House; Right law profs will endorse, for instance, Dean Elena Kagan for the D.C. Circuit when a Democrat occupies the White House.

Well, this could really put a crimp in lawprof mud wrestling.  Why would they do such a thing?

The reason for the pact? Law profs — literally any law prof — is likely to be as good as, or even a better than, the typical nominee to a lower court, whose qualifications typically amount to being a Senator’s friend or staffer. Yet law profs face an enormous headwind in securing a nomination, because they have paper trails on controversial issues. It does not help that law profs testify against their own when a professorial nominee has particular positions that the profs oppose. But eliminating profs in this manner actually is self-defeating in every sense of the word: It is not as if the professorial nominees are replaced with nominees that are ideologically simpatico.

An interesting point.  One the one hand, we have lawprofs, right or left, and on the other, some Senator’s friend or staffer.  Oddly, that had never been my idea of the entire universe of potential federal court judges.  But then, the “Senator friend” may sound more derogatory than it really is.  More about this later.

The initial reaction came from Jonathon Adler at VC, who was ready to play.

I’m ready to sign on (even though — or perhaps because — I’m quite sure I’d never be a direct beneficiary. But I’d also go Rick one better, and suggest that law professors begin urging an overall de-escalation of judicial nomination fights. In particular, it would be nice if law professors stopped providing intellectual ammunition to Senators and activist groups who wish to dress up their ideological attacks on qualified judicial nominees. In my opinion, the purpose of Senate confirmation for judges (as for ambassadors and many other positions) is to prevent against cronyism, not second-guess the President’s ideological preferences.

I’m not entirely sure, but I believe that the Constitution limits cronyism to the executive branch.  But the point about de-escalation is interesting.  Do the lawprofs go after each other tooth and nail, ripping their brethren to shreds in Senate hearings, exposing their law review articles as intellectual frauds with Senate testimony, dripping with sarcasm, as one condemns the other as having “scholarship that fails to meet academic rigor.”  Ouch.  Nasty stuff.  I can see Arlen Specter grimace.

Next came fellow PrawfsBlawger Paul Horwitz’s reaction, who questions why a non-aggression pact would be necessary or good.

It is possible that law professors are less likely to be “corrupt” than these other lawyers, depending on how you define the term, if for no other reason than that they are less likely to be worldly, or at least successfully worldly. But there are all kinds of ways for judges to be corrupt. One of those, and the most important, is to lack impartiality; and I see no reason for assuming that law professors will be impartial than any other lawyer, particularly once you factor in partiality based on political ideology.

Horwitz, traitor to the cause, makes some excellent points.  So do the others, really, but Horwitz comes out and says some ugly truths: 

1.  Lawprofs lack the “worldliness” that practicing lawyers expect and need from judges.
2.  Lawprofs can be as ideologically “corrupt” as anyone else.

Rick Hill’s beef had much to do with the fact that lawprofs, unlike most other appointees, have a clear track record of their thinking, available in law review articles (and now blawgs as well), that puts them at particular risk of having their head ripped off at confirmation hearings. 

By Hill’s reasoning, the alternative is “blanks”, people as ideologically committed but without any history to provide fodder to the opposition.  This leaves lawprofs exposed and “blanks” protected.  His non-aggression pact would seek to limit the bloodshed over lawprofs’ scholarly efforts.  Implicit in his lawprofs versus “blanks” point is that lawprofs, at least, are a better (smarter?) choice than “blanks”.

One thing they all seemed to agree upon, that the fighting over confirmation is over the top and requires “de-escalation”.  To the extent a rationale appears for this, it’s that the Senate is paralyzed by the fighting and not enough appointees are being confirmed, leaving courtrooms without judges.

It’s curious that Hill doesn’t consider the fact that appointments have become ideologically extreme, thus raising the level of attack and rhetoric.  Maybe the solution to the paralysis, which is the safeguard that the Constitution deliberately includes for that “check and balance” thing, is ideological de-escalation rather than some subversive non-aggression pact. 

Not going to happen?  Perhaps, but as the right goes to extremes, so too must the left to seek balance.  It’s a lousy balance, since we’re not talking about appointees who are impartial, open-minded and qualified.  If one side tries to stack the deck its way, the other side is (a) obliged to try to stop it, and (b) obliged to stack the deck the other way.  After all, if lefty Senators believe their views are correct, how can they acquiesce in righty ideological choices just to keep the peace and move things along?

There is an entire side of the issue that Hill failed to recognize, though Horwitz picked up on it right away.  Who says lawprofs make good judges in the first place?  Sure, they may be smart.  Some even brilliant.  Smart is good, but brilliance is over-rated, and is often a handicap.  But what about having experience in the trenches?

This is where many federal judges fall flat.  They lack real world experience.  They lack breadth of experience.  How many have tried a case to verdict before a jury?  Of those, how many did so without either having the backup of the United States Attorney’s office or Biglaw behind them?  Why does this matter?

Federal judges, contrary to the expectations of lawprofs and ideologues, deal with real people with real disputes.  One recurring issue, based on my time in the trenches, is that too many judges have never actually sat down and spoken to a criminal defendant.  Too many have never comprehended the relative conflict between defendant and federal agent.  Too many have no clue that everyone doesn’t fit neatly into the little round and square openings that they will ultimately put them into. 

They sit on big wooden benches and believe they understand the world, but they don’t.  Their lives have been cloistered, and their world is black and white.  Call it ideological or just painfully naive.  All too often, they just don’t “get” reality, and this leads them to make facile decisions.  They don’t think so, but they do. 

Then, there’s the suffering of trench lawyers at the hands of the federal bench.  Such as, “counselor, prepare a memo on that issue for tomorrow morning” when you make an application at trial, just received 298 pages of Rule 3500 material for cross in the morning and are a sole practitioner, and you know the judge is going to deny it anyway.  Or the judge who leaves you sitting in the courtroom for 5 hours, awaiting her appearance, without thinking that you’ve got other clients and other judges who might appreciate your presence as well.  Or the judge who demands that you and your client appear in their courtroom in an hour, assuming that you do nothing except sit in your office awaiting a command performance. 

Judges make bizarre, unrealistic and incredibly onerous demands on lawyers all the time.  They do this because they have never experienced what life is like for a practicing lawyer.  Even if they do, their experience is usually in Biglaw (that’s how they get to know their Senators, when they hand over the campaign contribution check), and think everybody has 12 associates asking “how high” when they say jump.  Lawyers are fungible to them.

I can’t tell you how many times I explained to a judge when a case was adjourned to a date where I was already booked that it was a problem.  The response was, “so have another lawyer appear,” to which I would feign looking in my pockets and reply, “Sorry, but I don’t seem to have any other lawyers in there.”  They would be completely befuddled by the concept that lawyers have other cases, other clients, other obligations.

And if the disconnect is bad at the trial level, the appellate level can be totally disconnected from reality.  It’s like explaining the flavor of food you’ve never tasted. 

So while Rick Hill’s dreaded “blanks” may not have a paper trail of law review articles with which to attack their ideological bent, lawprofs may lack the breadth of experience in the trenches to understand how their service impacts on real people and real lawyers.  Given Paul Horwitz’s second point, that lawprofs are no less ideologically “corrupt” than anyone else, I think I would prefer a judge who has some clue about life in the real world over some lawprof whose theoretical perspective is ideologically simpatico with today’s occupant of the oval office. 

Anybody wonder why Nancy Gertner is so appreciated?