The reaction to efforts to “explain” for the sake of distinguishing why Brett Talley wasn’t qualified to be a federal judge proved to be curious. Most of the arguments centered on the fact that he had only “practiced” for three years, had never tried a case, “never even argued a motion!” Certainly these aren’t the sorts of things that give rise to a sense of competence, but I admonished Talley’s detractors to be careful.

Elena Kagan: 3 years practice. Never tried a case. Prawf & dean. 1 year as solicitor general. Sup Ct justice. Be careful.

This brought a flurry of retorts designed to distinguish Kagan from Talley. Notably, few raised the most substantive distinction, that her decades of experience as a scholar provided Justice Kagan with a base of knowledge and experience, even if not the same as actually trying a case, that Talley lacks. One could argue whether writing law review articles and being on panels discussing legal theory is the equivalent, or perhaps even better, experience, but that wasn’t where this headed.

Rather, the argument was that a judge of a district court, where trials happened, needed a different skillset than an appellate judge. The district judge was, I was informed, a glorified calendar clerk, pushing cases in and out, while an appellate judge was expected to have a brain and be capable of serious legal thought.

Others noted that this characterization of district judges as the village idiots of the judiciary wasn’t entirely accurate, that judges had people to handle their calendars, and that they sent the riff-raff off to magistrate judges to handle the busy work. Yes, after demeaning the job of district judges, the kid lawyers savaged magistrate judges as if they were grocery clerks, hired for their mad paper-pushing skillz. You can’t make this stuff up.

There is an element of self-serving nonsense to all this, as the voices came from some of the same kids who favor #AppellateTwitter, which suggests they aspire to someday get a bench and realize they will never possess trial experience. By denying its value and relevance, they pave the way for their grand future as brilliant legal theorists whose experience is limited to brief-writing and the occasional oral argument. Enlightened self-interest is an amazing motivator for rationalization.

But all of this raised a very good question: is there any reason why an appellate judge needs trial experience?

Years ago, this wasn’t a real question, as lawyers were not so specialized that an experienced lawyer wouldn’t have done time in the trenches as well as time in the lofty appellate courts. Trials and appeals were what we did, and we were adept at shifting back and forth as needed, but we understood, and experienced, both.

We’ve grown more highly specialized over the past generation. Perhaps this is the product of too many lawyers, and the corresponding need to distinguish oneself as a “specialist” in order to market one’s skills to clients. Perhaps specialization just made us better at what we did, and raising the bar meant that dilettantes could no longer compete.

The position of circuit judge, or even the honor of being one of the final Nine, is a big deal. It’s not that the pay is great, though no judge has starved to my knowledge. It’s that these are positions to which many lawyers aspire. These are positions that make history, that change lives, that influence the future of society. It’s a big thing.

So it’s not as if there aren’t enough lawyers around to fill these positions. And it’s not as if there aren’t enough lawyers around who possess the full panoply of qualifications on the judicial wishlist. The question thus becomes whether trial experience is, or should be, on that list.

Appellate lawyers suffer from the same sense of inadequacy that many academics endure. No matter how brilliant they believe themselves to be, they’ve never been tested in the trenches. Can they make the right split-second decision to leap to their feet and object? Can they make an agent cry on cross? They can talk about it, theorize about it, critique it from their easy chair, but can they do it? They don’t know.

But appellate judges sit in review of trials. If their grasp of how trials actually happen, the pressures, the fights, the million tiny choices and the consequences of getting those choices wrong, is inadequate, they will put the reality of the trenches into their fantasy paradigm. It’s like the appellate judge who believes police testimony because he’s never experienced the lying cop who beat your client and can’t truly understand how or why this would happen. He can mouth the words, but he can’t envision it. He’s never experienced it.

And then there are the rules appellate courts craft for the trial courts to employ. Are they viable or some fantasy version of how things happen in the trenches? Did the court come up with a rule that trial judges can apply? Did they include enough of the pieces of the rule so that district court judges won’t have to spend the next decade trying to figure out if it’s retroactive or subjective versus objective? Did they fix a problem or just create a new problem?

If appellate, even Supreme Court, judges understood how life in the trenches of district courts worked, perhaps they would be in a position to do their job far better, far more “real,” than they do now. Much as we obsess over what happens on the important benches, the real work of law happens in district courts, where the rubber meets the road.

But there are actually two questions here. The first is whether appellate judges would do better to have trial experience. The answer to that is clear. Of course they would. The second, however, is whether lack of trial experience should disqualify a lawyer from being appointed to an appellate bench. The answer to that is also clear, as experience has shown that there have been brilliant appellate judges who never tried a case or argued a motion.

If, however, the question is whether we would be better off with appellate judges who also possessed a breadth of experience that included trials, we would. It may not be the sine qua non of an appellate jurist, but let’s not lie to ourselves. Trial experience matters, and even the most brilliant appellate judge would be better with it than without it.

Update: A trial judge who spent much of his pre-judicial career doing appeals raised a very good point: Much as it would help appellate judges to have trial experience, it would be enormously beneficial for trial judges to have appellate experience as well. Or as he put it, “trial judges would do better to have substantial appellate experience!” I was remiss in neglecting this piece.