Prof. Philip Hamburger (Columbia) has an op-ed at the Wall Street Journal arguing, among other things,
What should be done about law-school deans and others in legal institutions who censor, cancel, blacklist, refuse to hire, fire, “investigate” and otherwise threaten others for their opinions? A partial answer lies in reminding them that their misconduct may disqualify them from ever sitting on the bench….
If a dean, committee member, law-review editor, bar-association leader, or other person in authority cancels, blacklists, excludes, threatens or otherwise disadvantages scholars, students, lawyers or their work on the basis of their opinions, can he be trusted as a judge to listen with an open mind to conflicting legal positions? If someone can’t tolerate both sides, how can he be trusted to do justice impartially? …
The position of a judge is unlike any other job. Judges enjoy vast authority over their fellow Americans, and the primary defense against abuse of this authority is their internal commitment to impartiality—their dedication to hearing both sides with an open mind and deciding without prejudice. This is a constitutional requirement of judicial office and due process.
So it’s not too much to consider intolerance or cowardice disqualifying. Those who have shown themselves to be intolerant of difference or too fearful to stand up for what is right have no business sitting on the bench.
I appreciate Prof. Hamburger’s concern about the disease, but I’m not on board with the cure.
Let’s step back and try to get a sense of perspective about all this: A 23-year-old law review editor does something “intolerant,” and this makes him unfit, perhaps thirty years later, to serve on the bench? Really?
Could it be that half a lifetime in the practice of law might change a person (whether for the better or for worse)? Why should we think that having exercised poor judgment—nothing criminal or even tortious or violative of the rules of ethics, but just weakness, folly, intolerance, or self-righteousness—just a few years into adulthood should weigh so heavily when we evaluate an accomplished professional? I wouldn’t appoint people to judgeships because of something great they did when they were 23. I wouldn’t blackball them because of something intolerant they did.
Beyond that, consider how categorical the proposal is in scope as well as in time: “If a dean, committee member, law-review editor, bar-association leader, or other person in authority cancels, blacklists, excludes, threatens or otherwise disadvantages scholars, students, lawyers or their work on the basis of their opinions, ….” Well, yes, if a dean had fired a professor for his speech, and that violated the First Amendment (in a public university) or a state statute (which may apply even to private universities) or academic freedom principles, it’s legitimate to count that against the dean in various contexts.
On the other hand, hiring decisions are inevitably based on the content of a candidate’s scholarship, and sometimes even on the candidate’s opinions. (Some opinions, for instance, may be viewed as reflecting poor reasoning.) If a committee member “excludes” a candidate because the member thinks the candidate’s opinions about legal history are just historical nonsense, that might be reasonable, or might be intolerant, or might be some mix of the two—but I doubt it tells us much about whether the committee member would make a good judge.
On top of that, while some institutions ought to be tolerant of a vast range of ideological beliefs, not all should be. Some law reviews are deliberately ideologically focused, and are known to be that, just as some serious magazines are deliberately ideologically focused. It’s hardly disqualifying from a judgeship, I think, for a student to be an editor of such a journal, and to “disadvantage[]” certain authors’ “work” because of the authors’ “opinions” embodied in that work.
The article likewise faults “law firms [from] discourag[ing] associates, even partners, from taking pro bono cases for dissenting individuals,” and I think that’s often a reasonable criticism, especially if the law firm promotes itself as a big tent. On the other hand, some firms are deliberately highly ideological; I wouldn’t expect an overtly pro-labor-union law firm, for instance, to approve many pro bono cases supporting anti-labor advocates, or vice versa. Yet I don’t think that former managing partners of such law firms, whether on the Left, on the Right, or anywhere else should be disqualified from judgeships.
To be sure, implementing such a categorical rule—if it could indeed be consistently implemented—might help deter some bad behavior (as well as some unobjectionable behavior). But so what? Speeding is bad behavior, but I wouldn’t endorse disqualifying from a judgeship anyone who had ever gotten speeding tickets while in law school, even if I thought that it might add an extra dollop of deterrent.
Now if some Presidents or Senators—or their analogs in various state judicial appointment systems—wanted to consider whether such recent actions by a dean, professor, or lawyer reflect on the person’s judicial temperament, that would be fine. (I wouldn’t consider such actions by a law student, just because those actions were almost certainly at too different a time in the candidate’s professional life.) But those actions should be considered alongside all the other features of the prospective judge’s career, rather than as some sort of categorical litmus tests.
And we should also recognize that judges are expected to exercise an impartiality of a sort that lawyers and professors generally need not. I take it that it’s OK for a professor to prefer applicants with a higher GPA or who had gone to a more prestigious law school, even though a judge should presumably not consider that in deciding what witness to credit or what sentence to hand down. Likewise, I take it that it’s OK for lawyers to choose their own clients (pro bono or otherwise) based on the clients’ ideology or professional role (e.g., employee, employer, tenant, landlord, etc.), without making it impossible for us to “trust[]” the lawyers “to do justice impartially” once the lawyers are appointed to the bench.
In any event, it seems to me a mistake to create overbroad, perpetual, and categorical disqualifying rules—for judicial appointments or for most other things—especially when those rules turn on behavior that is generally perfectly lawful even if, in our view, insufficiently tolerant. We need fewer blacklist threats these days, I think, rather than more.
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