Prof. Philip Hamburger from Columbia has an Op-Ed in the Wall Street Journal, arguing that, amongst other things,
What can be done to deal with law-school deans, other members of legal institutions, who refuse to fire, censor or blacklist others because they disagree? A partial answer lies in reminding them that their misconduct may disqualify them from ever sitting on the bench….
Can a committee leader, dean or member of a law-review editorial, or bar-association leader cancel, blacklist, threaten, disadvantage, or otherwise disadvantage scholars, students, and lawyers on the basis their opinions? If this happens, how can they be trusted to act impartially as judges to consider all legal points. Can someone who is unable to tolerate the other side be trusted with impartial justice? …
A judge’s job is unique. 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 requirement is part of the constitution for judges and due process.
It’s easy to see intolerance and cowardice as disqualifying. People who are intolerant of differences or afraid to speak up for the rights they hold dear have no place on this bench.
I appreciate Prof. While I understand Prof. Hamburger’s concern for the disease and his efforts to cure it,
We can look back at this and see how it all fits together. A 23-year old law review editor is intolerant, and this renders him unfit to sit on the bench, possibly thirty years later. Really?
Is it possible that half of a life spent practicing law could make a difference in someone’s life? 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? People would not be appointed to judgesships based on something they accomplished when they were 23 years old. Because they were intolerant, I wouldn’t blackmail them.
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, ….” Yes, dean could have fired a professor because of his speech. This would be a violation of the First Amendment in a public university or state statutes, or academic freedom principles.
Hiring decisions, on the other hand are often based on the content and opinions of candidates. (Some opinions can be considered to reflect 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.
Additionally, although some institutions should tolerate a wide range of ideologies, others shouldn’t. Many law reviews, as well as serious magazines, are ideologically-focused. A student can be editor or “disadvantage” of such a journal without being disqualified from the judgeship.[]Because of their “opinions”, certain authors “work”
The article also criticizes “law firms”. [from]Encouragement[ing]”Associates, partners and other members of the legal team are not allowed to take pro bono case for dissident individuals,” which I find quite reasonable, particularly if the law company promotes itself as big tent. Some firms, however, are intentionally ideological. I would not expect a pro-labor union law firm to approve pro bono cases that support anti-labor advocates or vice versa. However, I do not believe that ex-managers of these law firms should be barred from the judgeships, regardless of their political affiliations.
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). What does this mean? But speeding is bad behaviour, and I would not endorse the disqualification of any judge who has ever been issued a speeding ticket while attending law school.
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. These actions would not be considered by law students because they occurred at an almost inexorable time during the candidate’s professional career. However, these actions need to be seen alongside other aspects of the potential judge’s professional life and should not be treated as categorical litmus testing.
It is important to recognize that judges must be impartial, in the same way as professors or lawyers. It’s okay for professors to choose applicants who have a better GPA, or were educated at a more respected law school. However, a judge shouldn’t consider this when deciding which witness to call or the sentence to be handed down. Also, lawyers can choose clients for pro bono work based upon their ideology and professional roles, such as employee, employer tenant landlord, tenant landlord, etc.It doesn’t make it impossible to “trust”.[]Once they are appointed, the lawyers will “do justice impartially”.
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. These days we need less blacklist threats than ever.