Bush nominee story

RJLipkin at aol.com RJLipkin at aol.com
Fri Jun 25 05:41:13 PDT 2004

In a message dated 6/25/2004 12:57:56 AM Eastern Daylight Time, 
jeastman at chapman.edu writes:
He has made several state court appearances, and each time his lack of 
compliance with the bar membership rules was simply overlooked.  Does that 
disqualify him for a future appointment to the bench?
        Did the court or other relevant authority overlook his noncompliance, 
that is, was his noncompliance overlooked by someone having the authority to 
overlook noncompliance?
Who has the authority to overlook such noncompliance? In short, was his 
noncompliance officially sanctioned?

        I remember a discussion (not on this List) about whether 
nonpracticing law professors should be members of state bars as a condition of their 
employment.  Indeed, my appointment to Widener's faculty (named Delaware law School 
at the time) was held up for a couple of days until the Dean was able to 
contact me and learn that I was a member of the California Bar.

        I can't shake the sense of incredulity over the List's discussion and 
the caviler attitude that not being a licensed attorney is perfectly 
compatible with appointment as a judge.

        The bottom line is this: Does being a member of a bar make an 
individual a better judge or better attorney.  I think, in one sense, the answer is 
resoundingly no.  However, practicing law, teaching law, and studying law as 
well as judging legal conflicts requires a respect for rules even sometimes 
rules having only marginal value (I'm not committing myself on whether bar 
membership is a rule having only marginal value, but let's assume, for the sake of 
this discussion, that it does.). While rejecting any slavish adherence to rules, 
some rules should be followed even if their purpose is not always obvious, 
and, in my view, bar membership is one of them. For one thing, complying with 
this rule is relatively easy, and the imperative to do so seems clearly 
nonpartisan.) We can change this rule, of course, and I have suggested in print that 
bar membership or even law school training should not be prerequisites for 
appointment to the Supreme Court. But until these rules are changed I would insist 
on compliance.

        To answer John's question above. I think it is a disqualifying factor 
or, if not disqualifying, then at least a strong reason for rejecting an 
individual's appointment to the bench. 

        In my mind, the fact that a List of law professors and legal scholars 
are even having this discussion is very troubling. We generally insist that 
others--students, welfare recipients, automobile drivers, and so forth follow 
rules exactly, but when it comes to 'one of our own,' a waterfall of excuses 
and rationalizations suddenly emerge. 

      My reason for insisting that lawyers and judges are members in a bar in 
the present regime requiring (or ostensibly requiring) membership is because 
I simply cannot fathom the mindset of an individual who would not take such 
membership seriously unless, of course, there exist overwhelming reasons for not 
being licensed.  What type of personality/character must an individual 
possess not to think that the requirement really applies to him, or if he thinks it 
does apply, that noncompliance is no big deal? Perhaps all that this says is 
that my power of imagination is abnormally limited.  But I do not for a moment 
think so. Not adhering to this basic rules seems clearly to suggest a supreme 
lack of self-discipline when it comes to other people and other organizations 
(and even when it comes to oneself). Moreover, I think it probably suggests 
other unattractive personality/character traits that probably should disqualify 
an individual from appointment to the bench. (Of course, this raises the 
fundamentally important question of which personality/character traits judges 
should possess in a democratic republic.)

        Let me reiterate a question left unanswered in one of my earlier 
posts on this thread. Do governmental officials monitor our discussions in order 
to harvest arguments for and against their positions in some controversy 
relevant to the List's mandate? If so, does this impose obligations on List members 
regarding the content and mode of presentation of our posts?


Robert Justin Lipkin
Widener University School of Law
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