Chief Justice nominees and "professional courtesy"

Paul Horwitz phorwitz at
Thu Feb 24 11:48:49 PST 2005

I think Bobby Lipkin's formulation hits on the key point here in 
understanding the position of many on McConnell: "connected to the legal 
academy."  I tend to think that underwriting the difference between the 
treatment of McConnell and the treatment of some similar candidates is not 
friendship as such -- many law professors might look relatively favorably on 
McConnell's nomination even if they do not know him -- but some version of, 
to put a little spin on it, professional courtesy.  (OK, a big spin.)

To pick up on the thread that a number of posts have followed, is this 
appropriate?  Is "I'm acquainted with his work and think he's thoughtful, 
even brilliant, and thus am willing to support him, or at least not oppose 
him," a display of nobility, or integrity, or whatever you want to call it, 
if it's motivated by the lurking thought that smart law professors are good, 
so this candidate ought to be a fine judge?  I don't think this is a 
necessarily determinative factor in all cases: I think many people who 
support McConnell not only think he is smart, but think his views don't tip 
the outrage scale, whereas many liberal law professors might now oppose John 
Yoo as a judicial candidate even if they thought him the most brilliant 
legal scholar in the land.  But isn't this underlying sensibility of 
thinking fondly of "people like us" helping to underwrite some of the 
support for McConnell?  And if so, is it really integrity?

I ask this question because I wonder whether, in these circumstances, 
candidates who are otherwise brilliant but don't have a law professor's 
profile shouldn't also be receiving the same degree of support.  What's the 
difference, on these narrow grounds, between someone like McConnell and 
someone like Jeffrey Sutton or Miguel Estrada?  Aren't they also likely to 
be brilliant, thoughtful, and conservative?  Surely the difference can't be 
that someone like Sutton chose to take money to argue for conservative 
outcomes, although he was criticized on almost precisely those grounds.  
After all, Michael McConnell took money to argue, in the law reviews, for 
conservative outcomes, and he had no duties to a client.

It seems to me ultimately that part of what's going on in the McConnell case 
is not simply a recognition that he's smart and thoughtful, although I do 
appreciate the point raised earlier that this might make him especially 
palatable to liberals as a Bush appointee.  Rather, there is an undercurrent 
of simple respect for a good legal academic, to a degree not seen for just 
plain non-academic lawyers.  That's understandable, though still 
questionable, if what law professors really want on the bench are 
interesting judges to whom they can relate, but less understandable if one 
cares about substantive outcomes.  And I'm not sure that, if this is an 
underlying motivation, it can be labeled as integrity or nobility, as 
opposed to professional courtesy.

For the record, I'd love to see McConnell on the High Court, though not as 
much I'd love to enjoy a few years of Chief Justice Posner.  But I -am- 
looking for interesting Justices, and in both cases their positions, whether 
or not I always agree with them, don't fail the puke test.

Paul Horwitz
Associate Professor of Law
Southwestern University School of Law
Los Angeles, CA

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