The Senate Judiciary Committee’s hearing not only fell short of the level of public interest reflected in the Kavanaugh hearings, but couldn’t muster even one Democratic senator. It’s not just that there was no audience to play to, to give Spartacus speeches or put on an incompetent cross, but that this was a “recess” hearing and, well, they would rather be on the playground than at work. Still, the nominee faced some serious questions from senators of her own side.

“I can see your résumé. You’re a rock star, but I think to be a really good federal judge you’ve got to have some life experience,” Kennedy said. “Williams & Connolly is a great law firm, a lot of great lawyers there. Tell me why you’re more qualified to be on the Fourth Circuit than some of the Williams & Connolly [lawyers] that have been there for 20 years, 25, 30 years in the trenches.”

“Again senator, my experience in the federal courts of appeals and the Supreme Court are why I’m qualified. Not only the depth of that experience but the variety,” she replied. “The judges on the courts of appeals get a wide variety of cases, and I have that experience in criminal law, prisoner petitions, products liability, intellectual property, commercial disputes, constitutional issues.”

The nominee was Allison Jones Rushing for the Fourth Circuit Court of Appeals, and the reason for the question was that she’s 36 years of age. She was born in 1982, the year I graduated law school. She graduated from Duke Law in 2007, the year I started this blawg. And she’s going to be a Circuit Judge. It’s a big deal.

Orin Kerr raises the question, how young is too young?

First, I don’t think there is an absolute age line that has to be drawn in every case. Everyone is different, and there may be exceptional people and particular windows of time when usual practices can be put aside.

Second, I think the common wisdom that a nominee should be at least around 40 years old is probably a good ballpark default. Part of that is that you want the nominee to have enough legal experience not to be green. You want them to have a rich understanding of the law that years of experience in the law can bring.

Generic stuff, but as Orin goes on to point out, age doesn’t really serve well as a metric of anything per se, so much as it may provide a “rule of thumb,” it’s a rule to be broken.

Years of experience doesn’t always translate to a wealth of diverse experiences from which broadly applicable lessons have been learned. Any judge who is named to the bench without experience will quickly get experience on the job. Finally, I think a lot of the work of a federal court of appeals judge — not all, but a lot — is the kind of law nerd work that can be done well even without a lot of experience. Experience is important, but I’m skeptical that it’s really the key issue.

This may reflect our different views of what we hope an appellate judge does, but the “gained” experience of the appellate “law nerd” work that academics parse within an inch of its life in their law review articles with 547 footnotes doesn’t cut it for me. Will her rationales demonstrate an understanding of reality in the trenches, on trial, in real life and real time? Appellate decisions aren’t written to fill the empty pages of F.3d or launch a thousand law review articles, but to guide battle in the pits.

In my view, the biggest concern with young judges is less experience than arrogance. Federal court of appeals judges have a lot of power. Being a judicial-restraint-oriented type myself, I worry about judges getting rather intoxicated with the judicial power. And I would guess that there is some correlation between the age a person became a judge and how tempted they are to drink enthusiastically from the tap of judicial power.

Lawyers tend to be arrogant by definition. It’s almost impossible to practice law without being arrogant, given that the bulk of law is comprised of two people telling each other how wrong they are, and each being arrogant enough to know with absolute certainty they’re right.

But there’s a special sort of arrogance that fills the heads of the young, an arrogance born of the failure to recognize the inexperience of failure or mistake.

Mark Herrmann once wrote that the reason older people always see problems where young people don’t: we’ve experienced it. We’ve seen the best laid plans go awry. We know that no matter how smart you are, how certain you are, how hard you’ve worked and thought it through, things still go wrong. Young people see us as negative. We see us as realistic. We’ve suffered the failures they believe will never happen because they haven’t. At least not yet. Young people are invulnerable. Old people know better.

The question of age isn’t new. Old judges can be bad judges, despite their “rich” experience, so age hardly answers the question.

But the notion that old judges should move out so young judges can fill their robes is naïve. It ignores the virtues of experience and institutional memory. If judges messed with laws the way fashion designers change hemlines, it would be a disaster. If this isn’t obvious, then you don’t understand how law impacts society.

So I really don’t see any argument favoring judges on the basis of age, aside from not making anyone a judge until they have sufficient life and legal experience to realize the nature of the duty they’ve undertaken. It’s about having good people become judges rather than young or old people become judges.

At 36, there are some serious questions as to whether the life experience gained is sufficient to rule on other people’s lives. But more importantly, her experience runs the gamut of Duke Law to White & Connolly, with a few judicial clerkships in between. A rather rarified experience, even if it included a #MeToo moment with some sweaty-palmed young buck from Phillips Exeter.

Has she ever tried a case by herself, with no one sitting next to her to fetch her a coffee or do an overnight memo on some pointless question raised by the judge in a mindless moment? Has she ever had a beer with her client at Zapata’s, that quaint bar at 168th Street and St. Nicholas, to discuss whether to give up 121 months of his life rather than life plus cancer for his minor role in a major crime committed because his kids were hungry?

Does she know that before 1989, sentences were handed out that were a fraction of what they are today and served just as well, to the extent they served any purpose at all? Does she even know who Len Bias is? Maybe age has nothing to do with it, but lack of age has its problems.