Posted by Orin Kerr:
How Do You Measure the Intelligence of a Judge or Judicial Nominee?:
http://volokh.com/archives/archive_2009_05_03-2009_05_09.shtml#1241551963
The hubbub over [1]Jeffrey Rosen's TNR profile of Sonia Sotomayor
raises some interesting questions about how you know might know how
intelligent a judge or judicial nominee happens to be. This issue
comes up a lot, so I wanted to blog a few thoughts about it.
Broadly speaking, I think there are three common ways to assess the
smarts of a judicial nominee: 1) look at the nominee's academic
credentials; 2) read his or her prior opinions, if the nominee has
judicial experience; and 3) talk to people who have worked with the
judge before. Let's talk about the strengths and limits of each.
One common way to measure how smart a judge or nominee is to look at
the judge's educational credentials. I personally think this is
overrated. There are meritocratic elements to these credentials, but
they are just elements; candlepower is only one influence on where a
person went to school and how they did there. As a result, you
probably know some incredibly smart people with terrible academic
credentials, and other people with extraordinary academic credentials
who you know aren't very smart. (If you like, you can play the game at
home of "name the famous person who went to an elite school but seems
kinda slow.") I tend to think that looking at educational credentials
doesn't tell you very much about how smart a judge or judicial nominee
is.
If the nominee has judicial experience, you can read his or her
opinions. Based on the Sotomayor opinions I have come across over
time, for example, I have generally thought her opinions are good. Not
outstanding, not particularly inspired, but good. I include one of her
opinions in my computer crime casebook, [2]Leventhal v. Knapek,
although I picked it mostly because it's a rare government employee
computer search case that does not involve child pornography. It's a
solid opinion; not amazing, but solid.
At the same time, judicial opinions are a tricky measure because
outsiders don't know how much of the judge's opinions were written by
law clerks. In a world of law clerks, a lot of judicial opinions are
good -- not amazing, but solid. That wasn't true in the old days. If
you skim through an F.2d from the 1930s, for example, you'll probably
find a few gems (mostly from the Second Circuit and select other
judges) and a lot of opinions that are just terrible. But these days
an appellate judge has the option of relying heavily on clerks. Great
clerks enticed by a prestigious court in a great location can usually
write pretty good opinions, often better than most judges if left
clerk-less. So past opinions are a guide, but not a perfect one.
Another option is to talk to those who have seen the judge in
action: litigants, who have seen the judge in a public capacity, and
those on the "inside" -- former clerks, other judges, and the former
clerks of other judges, who have seen the judge in a private capacity.
Former clerks and other judges usually won't say anything bad, at
least on the record (and if they do say something bad, you worry a lot
about personal gripes excessively affecting their judgment). Former
clerks of other judges and attorneys who have appeared before the
judge can be a pretty good source of information, but there's a
[3]"blind men and the elephant" problem that each person is basing a
judgment on a relatively limited experience.
To see this, imagine you're a law clerk for another Second Circuit
judge, and your judge sits with Sotomayor once or twice during the
year. You see Sotomayor at oral argument a few times, and then you see
a few draft opinions from her chambers. Can you really get a good
sense of how smart she is? Maybe. But then, maybe not. Maybe Judge
Sotomayor is really into a particular case, and asks great questions,
or has a great clerk who writes a fantastic draft. Or maybe life got
in the way and the judge was off her game that day, or the clerk was
ill or lazy and the draft wasn't good. Maybe your judge has always
gotten along with Sotomayor, and says good things about her, or maybe
your judge and Sotomayor don't get along, and he tells you that she's
a bad judge. The experience is valuable, but also limited. It can be
similar for a lawyer practicing before the judge. You see the judge
work on your case, but usually just your case, and it's only one on
the judge's docket. An impression of what a judge is like may or may
not be accurate, and it may be hard to get a full sense of a judge
without talking to a large number of those who have interacted with
that particular judge.
Finally, there's always a general problem with assessing a judge's
intelligence -- or really anyone's intelligence: identifying the
scale. Someone may be "utterly brilliant" in their high school,
"smart" at Stanford, and "slow" when interviewing for a faculty
position at the University of Chicago. Consider that several of
Rosen's sources are former Second Circuit clerks. It takes a lot of
brains to become a Second Circuit clerk; that's a sharp bunch. At that
level, the scale is going to be pretty high; there's nothing
inconsistent about saying that a Judge graduated from Princeton and
Yale Law and isn't very smart.
Different people are going to have a different sense of "how smart
is smart enough" for a particular position, and therefore different
people will use a different scale. Jeffrey Rosen is an academic, and
he uses an academic's scale; he wants the brightest of the brightest.
I'm also an academic, and I would use a similar scale. But without
going into [4]Roman Hruska territory, I think it's fair to say that
such a scale is really high, and that others might legitimately find
it too high.
References
1.
http://www.tnr.com/politics/story.html?id=45d56e6f-f497-4b19-9c63-04e10199a085
2. http://www.internetlibrary.com/pdf/Leventhal.pdf
3. http://en.wikipedia.org/wiki/Blind_Men_and_an_Elephant
4. http://en.wikipedia.org/wiki/Roman_Hruska#In_Defense_of_Mediocrity
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