May 19, 2011
Federal Judgeships: Active Scholars Need Not Apply?
Adam Winkler, Pamela Karlan, Professor Goodwin Liu, U.S. Court of Appeals for Ninth Circuit
By Adam Winkler, Professor of Law, UCLA School of Law
Does Goodwin Liu’s stalled nomination to the federal bench signal the end of judicial nominations for academics? Law professors have never been the darlings of the Senate Judiciary Committee – or even of presidents considering appointments to the federal courts. What’s happening with Goodwin Liu may yet further reduce the likelihood of law professors receiving nominations in the future.
Law professors aren’t natural choices for federal judgeships to begin with. Nominations for the lower federal courts often come from the senators in the state in which the vacancy arises, and law professors don’t tend to be politically connected players close with elected officials. As a general matter, we don’t make much money, contribute much to campaigns, or raise much for candidates. So when senators recommend nominees to the president, they are more likely to be partners at big firms than professors from big schools. (The Supreme Court is an obvious exception; over the past century, the Court was filled with law professors, from Frankfurter and Douglas to Scalia and Kagan.)
Even if a law professor scores a nomination, today’s highly polarized confirmation process, coupled with new technologies, make confirmation very difficult. Any law professor that writes on a politically contentious issue like abortion, affirmative action, or same-sex marriage will have those writings used against him. This isn’t unique to law professors; any writings of any nominee will be scrutinized. A sitting judge, however, can explain away controversial opinions by saying they don’t reflect her personal views but were required by precedent. Law professors don’t have that easy out – as Liu’s case shows. Republicans have refused to allow Liu to win confirmation because of his writings in favor of affirmative action and against torture.
Of course, not all law professors will face the same difficulty. Elena Kagan was confirmed despite being a former law professor. Kagan, however, had written only a handful of scholarly articles and most of them argued for broad free speech rights – a position that both Republicans and Democrats could accept. When staffers went out to search her articles for statements they could use against her, the only “gotcha” they found was her criticism of judicial nominees who refuse to discuss their views.
It’s no longer just the nominee’s writings that matter. Before Kagan was named, ACS Board member Pamela Karlan, of Stanford Law School, was one name bandied about as a potential nominee. But it was easy to go on YouTube and find videos of Karlan, who speaks at numerous events, making sarcastic, biting remarks on nearly every hot-button issue of the day. Though those who see her in person know that her most outrageous statements are meant to be humorous -- Karlan gets more laughs than any other law professor I know -- they are easy fodder for opponents.
The message for law professors from these examples is clear: if you want to become a judge one day, don’t write too much, write on non-controversial topics, and watch what you say at speaking events. The world is watching.