Following my post about Rick Hills’ proposal of a non-aggression pact and amongst lawprofs nominated for federal judgeships, regardless of ideologoy, Rick has responded :
I should have seen it coming: Scott Greenfield, over at Simple Justice, takes my proposed pact on judicial nominations to be a slight on trial lawyers with experience in the trenches. This is what comes of treading near to the edge of the Culture War between Academia and the Bar: One risks being misunderstood.
Just for the record: I’d presumptively prefer a street-smart, experienced trial lawyer over a law prof as a judge any day. This is especially true for the trial courts, but my preference holds also for the appellate bench as well. In general, the trial lawyers that I know have been wiser, quicker, and more intellectually open-minded than my law prof friends.
That’s very kind of Rick, though I didn’t exactly take his omission of trial lawyers from the universe of potential judicial nominees as a slight. Rick made no mention of trial lawyers, and I simply corrected that omission.
Now that he’s acknowledged that experienced trial lawyers (though this term bothers me, as it is generally used to refer to civil litigators rather than criminal defense lawyers) bring something to the bench that others cannot, we’ve removed that albatross from the discussion. I hope.
But Rick goes then further:
But I am happy to accept a friendly amendment from — or a joint cartel with — the trial lawyers: We profs will agree to support any nominee for the lower federal courts who is an “ace trial lawyer” (definition to be negotiated — but I’d say, anyone with roughly 15 years of experience litigating cases and with a great reputation with the ACTL and analogous organizations) if you trial lawyers agree to support analogous law profs.
The absolutely essential aspect of this pact is that neither group should give a whit what any nominee thinks about actual doctrine: On the lower courts, the stakes of such ideological disputes are low enough that we can pocket our preferences about Roe, etc.
Is it a deal?
I have some questions/issues/problems. But I told Rick that I would check in with the brethren and get back to him. Anyone think this is a good idea? Anyone care to note any questions/issues/problems you see with this proposal?
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Fifteen years is just about right.
Revise the standard from “an ace trial lawyer” to “a good trial lawyer” because this is more important than the difference between an “A” and a “B,” and “ace” give us a very small pigeonhole, doesn’t it?
Revise the definition to “a great reputation among his clients,” because the willingness and ability to provide service, often under duress from the bench and the prosecutor, says it all. Come to think of it, most lawprofs have never looked a client in the eye, have they?
“A great reputation with the ACTL and analogous organizations” is meaningless in “grading” a prospect who may be a dedicated workhorse but who is not much of a joiner, not aeminar panel participant, or not much of a schmoozer with the cliques that run these entities.
That’s a good start, but is that it?
Once you get passed a lawprof’s view of a qualified candidate from the trenches (putting aside the “trial lawyer” definition), do we want to be part of a non-aggression pact? Can we? Should we?
Should we trust anyone who says “trust me”?