"Legal Acumen" Is an Overrated Quality for Judges

In the comments to this post, Jeremy Telman and I had a short exchange on the extent to which SCOTUS justices have been, or will continue to be, nominated on the basis of “legal acumen,” should life tenure be eliminated. In this post, I want to make the case that legal acumen is overrated, especially when it comes to judging. Let me suggest that the only real qualifications for a SCOTUS appointment is baseline competence and a reasonably open mind. Greater acumen adds little or nothing to judging – and might even be a detriment, depending on the circumstances.

First, of course, we need to define the term (which neither Jeremy nor I did in our exchange). Perhaps it means ability as a lawyer, in the sense of being able to determine applicable rules, see connections among precedents, identify relevant principles and apply them in new circumstances and novel ways, and articulate clear positions that are convincing to others.

I am sure I’ve missed a few qualities, but the most important aspect of legal acumen, for lawyers, is the ability to persuade judges (and to a lesser extent juries, in the age of vanishing trials). The persuasion of judges, however, is an exercise in advocacy always conducted on behalf of a client. The lawyer analyzes the client’s case and develops the arguments best suited to winning. This can be a serious challenge, and great lawyers are certainly brilliant at what they do. But this does not seem like a quality especially desirable in judges. Why would we want judges who are gifted at constructing winning arguments for either side of a case, based only on the partisan needs of a client? That seems like the exact opposite of good judging.

Another definition of legal acumen might simply be knowledge of law, including the ability to reach reasoned decisions and express them with clarity. That makes sense, but any lack of preexisting legal knowledge can be easily remedied by reading briefs and assigning research to clerks. Although the demand for encyclopedic knowledge is sometimes used as a gotcha in confirmation hearings – and the presumed lack of expertise derailed the nomination of Harriet Miers, who never even got to a hearing – it is hardly necessary in the age of computer research and multiple clerks. Moreover, it is dangerous for a judge to believe that he or she knows it all, as that can only lead to complacency and missed lines of argument and research. Nor can any nominee possibly have all of the requisite knowledge prior to confirmation – there is just too much law for any one person to have mastered. So again, baseline knowledge would be a necessity for confirmation, but more than that would not contribute to better judging.

Good writing, needless to say, is always a plus, and literary flourishes make opinions fun to read. But clarity is really the only quality necessary. What does the opinion really mean and how should it be applied in the future? Muddy writing should be a disqualifier. Excellent writing should be a requisite. Brilliant writing, however, is as likely to obscure an outcome as to elucidate it.

Let’s think of the best and worst SCOTUS opinions in history, and ask whether legal acumen played any role in the decisions. Brown v. Board of Education is by consensus the Supreme Court’s finest hour, but how much acumen was required to realize that legal segregation was intolerable? Nor was the actual opinion especially persuasive. It was welcomed by those who agreed with it, and it drew “massive resistance” from those who despised it. Chief Justice Warren showed great skill in obtaining a unanimous decision, but that was the result of his political chops rather than legal talent.

Korematsu and Dred Scott, on the other hand, have been rightfully repudiated by history. But the misguided opinions in those cases were due to moral blindness, not lack of legal skills. The opinions in both cases, in fact, were logically developed and closely argued, and fine exemplars of the lawyers’ craft. And yet they were awful in any meaningful regard. 

Finally, the currently accepted signifiers of quality for the most part boil down to an Ivy League education (currently Harvard or Yale, though a year at Columbia is not disqualifying) followed by a career at elite law firm or certain high positions in the federal government. But there is no good reason to think those “book smarts” make anyone a better judge. Depending on one’s political views, there are disastrous judges – Thomas, for liberals; Ginsburg, for conservatives – who have plenty of formally certified acumen.

Chief Justice Roberts’s opinion in the Obamacare case showed plenty of acumen – figuring out how the taxing power could save a law that he otherwise considered unconstitutional – but many fine scholars considered it a mess. There is a thin line between brilliance and contrivance, and it depends very much on one's view of the result.

I am not arguing in favor dumb, mediocre, or unaccomplished justices, but rather that legal brilliance beyond baseline competence makes little or no difference at the level of the Supreme Court. Good justices need to be decently educated, reasonably experienced, broadly aware, collegial, and hopefully fair and open-minded. Everything after that is likely to be irrelevant to doing a good job.

Comments

[anon]

Unbelievable. Truly unbelievable.

A law prof who can't fathom any factors that might influence how to judge someone's ability to make sound legal judgments (the definition of "acumen") beyond a self-referential list of the credentials that law school hiring committees find important in hiring a law professor: a role that, thankfully, truly affects a very limited number of people in usually inconsequential ways.

Acumen, in this context means, "the ability to judge well; keen discernment; insight," "keenness of judgment or insight" etc.

Lubet might have started by borrowing the criterion identified by folks he undoubtedly uncritically supports:

CBS News: "'I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life,' Sotomayor said in a speech at 2001 at the University of California, Berkeley, law school. She made similar statements at other such events."

NYT: "A year after Mr. Obama made “empathy” one of his main criteria in picking his first Supreme Court justice, he is avoiding the word, which became radioactive, as he picks his second nominee. Instead, he says he wants someone with “a keen understanding of how the law affects the daily lives of the American people.”

He could have referred to the factors I mentioned in the previous thread as well, but, presumably under the pretext that an unsigned comment isn't a comment, he doesn't.

[Bill]

It is a hoot to see how the political processes succeeded in turning empathy into a bad characteristic when lack of empathy is one of the hallmarks of a sociopathic personality. Just another sign of the nutty times we inhabit.

[anon]

Bill

The distinction is that we are not speaking of decisions based on personal notions of "empathy" when we speak of enforcing laws.

For example, the death penalty. If the law permits it, should a judge simply refuse to enforce it because she feels "empathetic" toward the condemned?

Ask Rose Bird.

It is sad, indeed, when "progressives" essentially argue for a society ungoverned by the constitution and other legal checks, but instead for a lawless society ruled by a junta, a vanguard, that governs based on what they think is required based on "empathy."

[Bill]

So sad to read your reply. You obviously misunderstand what it means to have empathy. An empathetic individual would have empathy for those who seek to enter our country, those who object to their entry for a variety of reasons as well as those who support greater access to entry by others, etc.
You are off in the weeds chasing and joining various political factions.

[anon]

How does anything you are saying relate to "legal acumen"? How do you relate feelings about immigration with any issue being discussed? Why does being "sad" about a comment, or a policy, or a "law" strike you as relevant?

Should a judge ignore the immigration laws, for example, because, like you, the judge is "sad"?

There are plenty of folks arguing exactly that point today. They are called, generally, "progressives."

[Bill]

Ankn, work onit, you may get there. Bye!