Sunday, June 27, 2010

Kagan's "Experience"

I hear that the Republicans, having no other cards in their hand, are going back to complaining that Elena Kagan doesn't have the "experience" necessary to be a judge. What a crock. At least for this job at this time, the fact is that Kagan has exactly the kind of experience she needs. Translated: for this job at this time, eing a professor is the best possible preparation.

I speak from a tiny bit of experience (!) myself: some years ago, I was a judge for a short time. I was at the opposite end of the food chain: I sat in bankruptcy court. I admit I worried before I took the bench whether I would have the chops for it. I found to my (pleasant) surprise that my responsibilities as a judge played right into my background as a teacher.

Consider: one thing a teacher does is to observe performance and to give grades. Which is exactly what a judge does. One thing a judge does is to read through piles of documents and render decisions. Which is exactly what teachers do. Indeed, students (if they don't like their grades) often complain that law school isn't like "the real world" (whatever that is). I used to think they had a point; having served as a judge, I am less persuaded than I used to be. To the contrary, I tell them, law practice is a lot more like law school then you might think: you'll be getting graded all the time.

I'd go further and say that ironically, a certain kind of courtroom "experience" was probably a lot more relevant down at my end of the food chain than it is up where Kagan will be, in the empyrean heights. Lower court judges preside over trials. Good trial lawyers do have a special skill set. A lot of lawyers aren't especially good at it, and a lot of what the good ones know is not what they leaned in law school. If the judge doesn't know how to stay ahead of a good trial lawyer, the trial lawyer will eat the judge for breakfast (think Lance Ito up against Johnnie Cochran in the OJ case-but then, Ito had experience). I had very little trial experience when I took the bankruptcy bench. Fortunately for me, not a lot of heavy-duty litigation goes on in bankruptcy court (we spent a lot more time reading papers). On the other hand I do remember making a few rookie mistakes precisely because I didn't have the experience (e.g., one day I took testimony from a witness who spoke no English; counsel provided a translator, and counsel had to remind me that I needed to put the translator under oath),

Appellate judges do none of that; so my (and Judge Ito's) "experience" is not really relevant to the case. In fairness , I will grant a small point, though I don't think it is dispositive. Specifically: one thing an appellate judge does is to review the work of trial judges. I suppose you could say that the appellate judge does need enough experience of litigation to get a feel for what the trial judge is up against, so he can understand the constraints when he reviews the record. But this kind of sensitivity probably counts in direct proportion to your closeness to the trial court. By the time you get to the Supreme Court, you're pretty far removed.

I'll grant also that there are a lot of qualities on which I'd like to judge a judicial candidate for which "experience" may be relevant--but now I'm talking about experience in life, not litigation. More generally,exactly what qualities should we look for in a judge? Brain power is, of course, on the list--though for my own taste, pure brain power, while on the list, is not at the top of the list (though brain power may be more important in the Supreme Court, where the appointee will have to go toe to toe with the likes of Roberts and Alito than it would be in a trial court). Beyond that, all he human qualities that we might group together as "character"--an ability to listen, for example; balance; steadiness, predictability; kindness (indeed just in general the older I get, the less impressed I am by brain power and the more by kindness). Oh, and a capacity for hard work: whatever else you can say about being a judge, it's a job, and they can't start without you (here think Micky Mouse in the Sorcerer's Apprentice).

There is at least one other quality essential to good judging which you might not always be able to identify the prior record. That would be an affinity for deciding things. This may sound almost trivial: judges decide, of course you need to be willing to decide. But not all judges have that affinity, and a judge who doesn't like to decide stuff is like a duck with an allergy to feathers: her life is a constant misery, with the enhancement that it is a misery she will impose on others. There are some who don't have it: my impression is that it was a temperamental aversion to decision that drove Charles Evans Whitaker from the high court in 1962. So I that is a legitimate topic for inquiry, but I don't mean to suggest that there is anything in Kagan's record to suggest that she lacks an affinity for decision (and ironically again, when ascended to the Supreme Court, he came with experience as both a trial and an appellate judge).

[As a final aside, that may be one place where a judge's life does differ from a professors. Professors do have to "decide," insofar as they give grades. But on the whole, a professor's life seems so much more remote from decision than a judge's. The great Grant Gilmore used to say that professors are like spies in enemy territory who are never sure that what they are doing is right--or, indeed, whether the guy who hired them is dead. A judge decides stuff every day. Do this, do that. What did you do today, dear? Oh (the old saying goes) we hanged six people and at least four of them deserved it].

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