We seem to take it for granted that, when it’s time to pick a new judge for an appellate court, we should look at people who are already serving as judges on lower courts. And when we’re filling vacancies on those lower courts, it seems natural that we should look at lawyers who have been successful, whether in private practice or public positions.
So the whole judicial branch ends up being staffed by former lawyers.
And that is a huge problem. Because being a lawyer is the worst possible training for being a judge.
Say what? How can that be the case?
Think about it. The law, as practiced in this country, is essentially a competitive sport. You become successful by winning competitions with other lawyers, whether that happens in a courtroom, or in a boardroom, or in a cubicle, or somewhere else.
And you win those competitions by mastering one fundamental skill: Identifying the result you want, and then justifying it.
(It’s like the old joke about accountants: A good accountant will tell you that 2+2 is 4, but a great accountant will ask you what you want it to be.)
To master that skill, it is essential that two other skills be honed to the point where they become instinctual:
- Ignoring the text of the law (what it says) in favor of judicial precedents (what judges say it says).
- Ignoring reason (which moves from premises to conclusions) in favor of rationalization (which moves in the other direction)
Practicing law means practicing legal advocacy, which rewards cleverness over clarity, flexibility over integrity, and rhetoric over reason. But the skills required for success at advocacy are pretty much the opposite of those required for success at adjudication.
Ignoring this leads directly to the bizarre situation we’re in now, where legal experts are holding up the following (from Brett Kavanaugh’s dissent in the second Heller case) as an example of ‘clear and succinct’ legal reasoning. Paraphrasing only slightly:
- We shouldn’t be able to ban semi-automatic firearms, because I approve of them.
- But we should be able to ban automatic firearms, because I disapprove of them.
- Traditionally, we have not banned the former, but we have banned the latter.*
- So the former are constitutionally protected, while the latter are not.
This isn’t adjudication. It’s advocacy. Adjudication would look more like this:
- Both semi-automatic and automatic firearms are ‘arms’.
- Bans are ‘infringements’.
- Infringements on the right to keep and bear arms are prohibited by the 2nd Amendment.
- So we can’t ban either of them, unless we change the 2nd Amendment.
- And my approval or disapproval is irrelevant.
The problem is, we’re never going to get adjudication from judges who have been chosen precisely because of their success at advocacy. We’re just going to keep getting judges who act like Lewis Carroll’s Queen of Hearts: result first, reasons afterward.
‘But,’ you say, ‘don’t judges need to know about precedents, and case law, and all that other stuff they teach in law school?’
There are a few possible responses to this, including:
- Do you really need to know what judges have said about a law in order to know what the law itself says? If that’s the case, then we’re in a lot of trouble, because it means that the words of those judges supersede the words of the law itself… which means that the judicial branch has usurped the function of the legislative branch… which means there’s been a bloodless coup.**
- Judges have clerks to help with that stuff. But seriously, if the law is so badly written that you have to have it explained to you by other judges, then it needs to be sent back to the legislature, not amended on the fly by the judiciary.
- Law school is training for advocacy, not adjudication. Being a lawyer in preparation for becoming a judge is like being a lobbyist in preparation for becoming a cabinet member. And we should expect both of those career paths to work out equally well for society.
Remember the joke about the drunk who looks for his keys under a street light, not because he dropped them there, but because the light is better? When we look for judges by considering only lawyers, we’re acting like that drunk — the search is easier, but we’re unlikely to find what we need.
* Actually, machine guns are not banned. Those made before 1986 can be purchased by anyone with the required tax stamp. But Class 3 FFLs can make new ones, and sell them to other Class 3 FFLs.
** This coup actually occurred in 1803, when widespread acquiescence to John Marshall’s opinion in Marbury v. Madison (‘It is emphatically the duty of the Judicial Department to say what the law is.’) changed the US from a ‘government of laws’ to a government of men’… in particular, a government of judges.