The First Mormon Justice

It occurs to me that there is a politically well-connected Mormon who is eminently qualified to take Justice O’Connor’s slot on the Supreme Court. (And no, I don’t mean Orrin Hatch.)The man I have in mind is Timothy Flanigan. (Full disclosure: I worked as a research assitant for Tim while in college, and he is one of the reasons that I decided to go to law school.) Tim, an active member living in Northern Virginia, is currently the number two man in the Justice Department. In George W.’s first term he was deputy White House counsel, and was one of the key GOP lawyers in the Florida recount litigation. In George H. W. Bush’s administration he served as head of the Department of Justice’s Office of Legal Counsel, where — among other things — he prepped both David Souter and Clarence Thomas for their confirmation hearings. For the non-law geeks, the OLC is, along with the Solicitor General’s office, the intellectual heart of the executive branch’s legal team. When the President or any other executive branch agency is faced with a particularly difficult legal question, especially one involving constitutional law, that requires an official legal opinion, they turn to the OLC. Of the currently sitting justices two — Rehnquist and Scalia — previously served as head of OLC. Tim is a graduate of the BYU and the University of Virginia Law School. He clerked for Chief Justice Warren Burger. In short, he is an extremely smart, extremely savvy, extremely well-connected, and extremely experienced lawyer.

He has never, however, been a judge. Although the last seven nominees confirmed to the Court — Ginsburg (DC Circuit), Breyer (1st Circuit), Thomas (DC Circuit), Souter (NH Supreme Court), Kennedy (9th Circuit), Scalia (DC Circuit), O’Connor (Arizona Supreme Court), Stevens (7th Circuit) — were sitting judges when they were tapped, there is not legal requirement that a nominee have judicial experience. (Also the two unsuccessful nominees in the same period — Bork and Ginsburg — were on the DC Circuit.) Nor is there any strong tradition of only appointing judges. Rehnquist had never been a judge prior to being elevated to the Court, and at the time of his nomination was — significantly — serving as head of OLC. Lewis F. Powell was an attorney in private practice in Richmond whose main claim to fame was that he had been head of the American Bar Association. Other well-known justices with no prior judicial experience include John Marshall, Earl Warren, Felix Frankfurter, and William O. Douglas.

What does Bush get if he nominates Tim? He gets a young justice in good health. He gets a man with the experience and intellectual firepower to hold his own on the Court. (No Harry Blackmun subject to raging insecurity and bullying from Linda Greenhouse he.) He gets someone with solidly conservative credentials whose qualifications cannot be seriously questioned. He gets a soft-spoken and friendly nominee who will be difficult to plausibly vilify at his hearings. He gets a dark-horse candidate who has not yet attracted the intensive scrutiny of the hatchet-persons of the legal left. (Any one doubt that People for the American Way already has a thick file on Michael Luttig for example? BTW, Tim clerked for Burger with Michael Luttig and they are good friends.) He gets someone who does not have an enormously long paper trail of published articles and opinions, although there are no doubt lots of OLC memos with Tim’s signature on them. (None of them, fortunately, deal with torture.) Tim does labor under the disability of being white, which means that there is no fun ethnic “the first ____ on the Court.” Of course, he would be the first Mormon, but we are not an “ethnic” group that provides much mileage. Tim’s Mormonism, however, might defang Harry Reid a bit, or at least mute his criticism a little. This is not without precedent. For example, it is a method that Clinton seems to have used on at least one occasion. When I worked on the Hill, lots of GOP staffers that I knew were puzzled by Hatch’s willingness to give Richard Paez, a liberal nominee to the Ninth Circuit, a free-pass in the Judiciary Committee. I argued that Paez was a Mormon and a BYU graduate and that gave him added traction with Hatch.

P.S. — George Sutherland, Utah’s lone contribution thus far to the high court, was a justice during the first part of the 20th century. (If I recall correctly, he was appointed by Taft and retired under FDR.) Sutherland, however, was not a Mormon. His father, an English convert who made the trek to Utah, became a Jack Mormon. As far as I know, Sutherland was never baptized, and he began his rise to power as an operative for the Liberal Party in Utah Territorial politics. (The Liberal Party was the anti-Mormon Gentile party, while the People’s Party was the Mormon party at the time.) With statehood, Sutherland became a Republican and later a Senator from Utah. He was, however, a BYU (then Brigham Young Academy) graduate. It goes without saying, of course, that the U. of U. has yet to get anyone on the Court.

47 comments for “The First Mormon Justice

  1. A. Greenwood
    July 11, 2005 at 9:44 am

    “Of course, he would be the first Mormon, but we are not an “ethnic” group that provides much mileage.”

    And that’s it, in a nutshell. Good thing he’s not a U grad, or his chances would be even slimmer.

  2. Mark B.
    July 11, 2005 at 10:07 am

    Two irrelevant comments:

    I was pleased to see you call Tim “young”–since he and I started at BYU the same year.

    If Tim were to become a member of the court, he would pass Justice Scalia for the largest family. That would of course open the way for a search for another justice to surpass the Flanagans.

    I’m sure glad that your post wasn’t another plug for Orrin “gag me with a spoon” Hatch.

  3. anon
    July 11, 2005 at 10:11 am

    No, Adam, that’s not it in a nutshell. But if you want to seize on a throw-away line to support your personal beliefs, it is, of course, your perogative.

  4. Nate Oman
    July 11, 2005 at 10:15 am

    Mark B.: Even though you and Tim started at BYU at the same time, I am assuming that you had some sort of very lengthy career prior to beginning.

    As for Orrin Hatch, I think that the only person who takes Orrin Hatch seriously for the Supreme Court is Orrin Hatch. From what what I gather, even Utah Republicans are getting tired of Hatch.

  5. anon
    July 11, 2005 at 10:19 am

    Why would any president replace an aged court justice with an aged Orrin Hatch? Of course Hatch doesn’t want to serve on the court as evidenced during a Q&A session at Harvard’s Kennedy School of Government in 2001. When asked about the possibility of him being put on the court, Hatch said the following:

    “If I had wanted to serve on the court, I think Reagan would have put me there. It’s never been a great desire of mine to serve on the court. However, if you were asked, you’d have to serve.”

    I guess the rest of Washington has been misreading Orrin’s signals all this time.

  6. Kaimi
    July 11, 2005 at 10:25 am


    You’re overstating your “no prior judicial experience” list by at least one — Thurgood Marshall served as an appellate judge on the Second Circuit for five years prior to his work as Solicitor General. See, e.g., .

  7. Nate Oman
    July 11, 2005 at 10:30 am

    Ooops! My mistake. I had thought he went from the SGs office to the Court. Error corrected.

  8. A. Greenwood
    July 11, 2005 at 10:32 am

    “No, Adam, that’s not it in a nutshell. But if you want to seize on a throw-away line to support your personal beliefs, it is, of course, your p[r]erogative.”

    I’m not sure what I’m being accused of, so I’ll guess at several possibilities. Do I believe that Mormonism isn’t one of those ethnic groups that people get misty-eyed about? Yes. I don’t really care, but its that way whether I care or not. Do I believe that the White House will nominate someone from an ethnic group (or gender category) that people get misty-eyed about? Yes, for political reasons. Does this put me outside the pale of rational discourse? Ask Anon.

  9. Kaimi
    July 11, 2005 at 10:32 am

    Well he did go from SG to the Supreme Court. But prior to that, he went from 2nd Circuit to SG.

  10. Geoff B
    July 11, 2005 at 10:42 am

    Nate, I haven’t seen any press about a possible Flanigan nomination. Do you think he is actually being considered at all?

  11. Nate Oman
    July 11, 2005 at 10:51 am

    Geoff: I haven’t seen anything on a Flanigan nomination. I suspect that he is part of the team that is vetting possible nominations for Bush. Of course, Rehnquist was in charge of the search for the slot that he ultimately got nominated to fill…

  12. lyle stamps
    July 11, 2005 at 11:26 am


    Paez didn’t get a free pass from Hatch. In fact, Hatch held Paez hostage for a substantial period of time. Granted, he did so under orders from Sen. Lott, and latter changed his mind and voted for Paez after lobbying from a mormon Utah constituent (Paez’s mom). In fact, there was even a story about how the “mormon” Hatch was holding the “mormon” Paez hostage and preventing a hearing and a vote.

    Yes, Hatch did change his mind (along with 14 other GOP Senators) to allow Paez his confirmation vote.

    Paez at one time held the record for having his nomination vote held up for 1,506 days. Nominated in the 103rd Congress, he was approved by the Senate of the 106th Congress.

  13. annegb
    July 11, 2005 at 12:01 pm

    I think Orrin Hatch is a prima donna and full of himself. I got mad at him and cussed at his aide, I said “hell” and “damn.” They haven’t spoken to me since. Well, it was in context: “what the hell does that mean?” I’m fairly positive it wasn’t the first bad words they heard and I can cuss so much more creatively than that.

  14. A. Greenwood
    July 11, 2005 at 12:17 pm

    “I think Orrin Hatch is a prima donna and full of himself” . . .

    ‘Prima donna and full of himself’ is one of the standard definitions of ‘Senator,’ isn’t it? Though whether that definition applies to Sen. Hatch I can’t say.

  15. Pete
    July 11, 2005 at 12:21 pm


    While he was educated at Brigham Young Academy, Sutherland apparently never “graduated” from either BYA or his law school, the University of Michigan (one year).

    One online account reads: “From 1879 to 1881 Sutherland attended Brigham Young Academy and absorbed the Social Darwinism of Herbert Spencer as well as a reverence for the Constitution from Academy president Karl Maeser–both were ideas that would shape his life.”

    Interesting combination.

  16. Nate Oman
    July 11, 2005 at 12:38 pm

    Adam: Another potential definition is “A person who wakes up and sees a future President of the United States in the mirror each morning.”

  17. lyle stamps
    July 11, 2005 at 12:53 pm

    Pete: You are correct re: Sutherland. I’ve read his personal papers in the LOC and both bios. Also of interest, BoM was a class he did take from Maeser, and got an A in. lol…

  18. Mark N.
    July 11, 2005 at 1:21 pm

    I just hope he ain’t one o’ them Mormons who thinks torture is a fine and acceptable way to go about gettin’ things done.

  19. July 11, 2005 at 2:17 pm

    This may be a bit of a threadjack but I’m interested to hear from the participating attorneys whether or not they think an essential requirment for for the SC, or any appellate level judgeship, is membership in the bar. I’m interested in philosophical arguments for why/why not.. I know that there is no statutory requirement that judges be members of the bar. I work in an organization with more than 2400 attorneys (I am not one of them) but have yet to bring up this issue in “friendly” conversation where the vast majority of the time I am the only non-attorney at the lunch or dinner table as well as being the only “conservative”.

  20. Nate Oman
    July 11, 2005 at 2:26 pm

    Paul: Most of the cases decided by the Supreme Court deal with complex and technical issues of federal statutory law or civil and criminal procedure in the federal courts, rather than big issues of constitutional law. A judge without legal training who tried to decide such issues would most likely be completely at sea.

  21. lyle stamps
    July 11, 2005 at 2:37 pm

    Mark: IF you read Nate’s entire post, your concern was already addressed.

    Paul: If you look to folks like CJ Warren; while they weren’t judges, they were politicians who drafted/signed legislation. As Nate points out, most of the business of the business of the Supreme court involves interpreting legislation…so politician lawyers at least have some background on this issue. O’Connor was somewhat unique in having been a judge and an elected official; and her jurisprudence showed that.

  22. July 11, 2005 at 3:01 pm

    Nate & Lyle:

    Don’t y’all see that as a problem? To me that seems like excuse-making for an inability to “see the forest but for the trees.” It’s the legal nitpicking that produces the likes of “substantive due process” and “penubras and emmanations.”

  23. Nate Oman
    July 11, 2005 at 3:24 pm

    Paul: The legal system works because there is attention to the forest. It is not simply mindless nitpicking. It is about creating a system of law that actually provides answers to concrete cases. What I am talking about is not substantive due process or penumbral emenations. I am talking about questions like the precedential effect of a Ninth Circuit interpretation of the Federal Communications Act in a later Ninth Circuit case after the Federal Communication Commission had offered a different interpertation of the same act after notice and comment rule making. (This was one of the issues in a case decided by the Court a couple of weeks ago.) This might sound like meaningless nitpicking, the millions of dollars potentially turned on the answer

  24. lyle stamps
    July 11, 2005 at 3:32 pm

    Paul: What is the problem with wanting someone experienced with either legal decision making and/or law making process to decide cases? Perhaps your would like to be operated upon by an individual who hasn’t gone to medical school? Unless of course, if you don’t think lawyers and judges are a profession with specialized and useful knowledge, as are doctors.

  25. July 11, 2005 at 3:49 pm

    Besides there being no requirement that nominees to the Supreme Court have judicial experience, it’s not even necessary that they be lawyers. According to George Stephenopolous’ memoirs, Clinton toyed with the idea of nominating Michael Sandel, a political theorist at Harvard.

  26. July 11, 2005 at 4:22 pm

    I don’t have anything against specialized training. I also believe that at the trial court level it’s important that all participants be members of the bar but as one moves up the food chain that specialized training becomes less and less relevant. With most professions and/or businesses as one advances the basic blocking and tackling skills become less and less important. Bill Gates, Steve Jobs, and Jeffrey Immelt all would not have the first clue as to how to post an entry to the general ledger, how to make a POS entry, or know who to call to purchase advertising but all of them perform superior work running their institutions because they have developed skills in a different class altogether than the ones required for the day-to-day operations of the institution. Why does that not apply to judges as well? I suspect the answer can be found in the increasing role of law clerks anxious to demonstrate their research skills and under the impression that they are still writing for “[insert journal name here]”.

    Lyle used medicine as an example but medicine does not have a comparable parallel to the appellate court system. I would no sooner represent myself at trial than I would have a chiropractor perform open-heart surgury. But even in medicine as physicians move up the organizational ladder they often put away their clinical skills and develop new ones.

  27. July 11, 2005 at 4:24 pm

    While there is no requirement that Supreme Court Justices be lawyers, it is almost unthinkable that a nominee today would not have graduated from a top ten Law School.

    Fortunately, that puts Orrin safely outside the realm of possibility at #52.

  28. July 11, 2005 at 5:07 pm

    I would no more want SC justices without legal training than I’d want ones who were clueless about the economics behind the decisions they make.

    My recent favorite was the case where the majority said something along the lines that if local governments had to reimburse private actors for all the costs their regulation caused then they wouldn’t regulate– and so the solution was that they shouldn’t have to reimburse!

    Talk about missing the point. I can only hope that I heard the details wrong and they didn’t really say that.

  29. Kingsley
    July 11, 2005 at 5:53 pm

    “I’m sure glad that your post wasn’t another plug for Orrin ‘gag me with a spoon’ Hatch.”

    Yes, but have you read his poetry, which is subtle and tasteful as his tie selection? Then I bet you wouldn’t be so quick to “judge.”

  30. lyle
    July 11, 2005 at 7:19 pm

    Nflanders: Were did Hatch go to Law School? What was its most recent ranking? I have a feeling you are going to be surprised…

  31. Nate Oman
    July 11, 2005 at 8:39 pm

    Hatch went to the University of Pittsburgh Law Shool.

    Paul: I suspect that you have a somewhat distorted notion of what it is the appellate courts — even the Supreme Court — spend most of their time doing. Although they like to strike the pose from time to time, most appellate judges are not issuing Solomonic judgements or discerning the true meaning of the constitution. Rather, they are attending the doctrinal growth of the law, clarifying, extending, and contractng the scope of the myriad of rules and precdents that actually provide lower courts (especially trial courts) with the guidance necessary to decide cases in a minimally principled and consistent manner. It is most definitely MORE than simply knowning how the get the right answer to some abstract question about free speech that any nincumpoop on a talk show can opine about. It is about knowing how to craft a judicial opinion that embodies the law in some rational and useable form. At the very least, it is a skill that requires an immersion in case law and an understanding of the life of a written opinion and the way in which precedent functions, grows, and contracts. Sandel is a brilliant political philosopher. I seriously doubt that he would be much good at clarifying the difference between a motion for summary judgment and 12(b)(6) motion for failure to state a claim. Yet these are not silly, pettifogging distinctions. They are the distinctions that make a legal system run with some minimum level of consistency and efficiency. Furthermore, they are distinctions upon which important disputes can turn.

    Ultimately the law consists of words and concepts. It is a language for resolving disputes that has evolved over literally thousands of years. In that time, jurists have learned something about how to speak, write, and think in ways that make the rule of law possible. In the early 17th century a dispute arose between James I of England and the Lord Chief Justice of England, Edward Coke. James argued that since the law was a matter of reason, the king’s reason was as good as the judges and the King ought to be able to decided cases just as well as they. Coke responded that the law was reason, yes, but it was “an artificial reason” that could only be had by long study and deep reflection on the learning of the law.

    On this, I stand with Coke. The law is more than simply political philosophy clothed with force. It is more than simply meaningless obfuscation of minutae (although there is some of that). The law has a logos that whatever its faults, has made the Rule of Law and with it the limited state and the modern market possible. It is far too fragile a human accomplishment to be entrusted to the hands of mere intellectuals, politicians, or ideologues.

  32. July 11, 2005 at 8:41 pm

    Hatch went to the University of Pittsburgh. USNews currently ranks them #52.

    But graduating from a top ten law school is definitely not a prerequisite.

  33. Nate Oman
    July 11, 2005 at 8:50 pm

    Warren Burger graduated from William Mitchell law school, which at the time was a night school run by a consortium of local Minneapolis attorneys out of a couple of dingy offices in a rented building down town. It drove Potter Stewart — he of the impecable Yale Law School education — absolutely nuts that Burger became Chief even though he had been sweating it out as an often lonely dissenter on the Warren Court.

  34. July 11, 2005 at 9:03 pm

    Nate, what schools did the current court graduate from? Out of curiosity, is it good that the top 10 schools have so much influence? Do you see that in other areas? I’ve heard that now most CEOs don’t come from the big schools anymore. I know in many disciplines you go to the school the advisor you wish to study under goes to. i.e. your thesis advisor is often much more important than the school you go to.

  35. Mark N.
    July 11, 2005 at 9:03 pm

    Mark: IF you read Nate’s entire post, your concern was already addressed.

    Well, maybe. It says in the article, “…there are no doubt lots of OLC memos with Tim’s signature on them. (None of them, fortunately, deal with torture.)”

    That just tells me we don’t know where he stands with regard to whether or not torture is “legal”, that we haven’t got a paper trail on him yet. : )

  36. Nate Oman
    July 11, 2005 at 9:14 pm

    Rehnquist — Stanford
    O’Connor — Stanford
    Thomas — Yale
    Scalia — Harvard
    Kennedy — Harvard
    Gisburg — Columbia (she transfered from Harvard after her first year)
    Stevens — Northwestern
    Souter — Harvard
    Breyer — Harvard

    Recently retired Justices:

    Marhsall — Howard
    Brennan — Harvard
    Blackmun — Harvard
    White — Yale
    Powell — Washington & Lee

    I think that the preponderance of top ten schools (and lets be honest, we are really talking about the preponderance of four or five schools) is probably a bad idea. It gives a few educational institutions a disproportionate power in socializing future justices, although some of them obviously react strongly against it. (Scalia was clearly scarred by his Legal Process class at HLS and much of his jurisprudence consists of a prolong scream of protest against the Legal Process school that dominated HLS in the post-war years.)

  37. July 11, 2005 at 10:26 pm

    Of course, this is hardly a trend limited to the Supreme Court…

    George W. Bush: Yale University (1968); Harvard Business School (1975)
    William J. Clinton: Georgetown University (1968); Oxford University (1968-70); Yale University Law School (1973)
    George H.W. Bush: Yale University (1948)
    Ronald Reagan: Eureka College (1932)
    James E. Carter: U.S. Naval Academy, Annapolis, Md. (1946)
    Gerald R. Ford: University of Michigan (1935); Yale University Law School (1941)
    Richard M. Nixon: Whittier College (1934); Duke University Law School (1937)
    Lyndon B. Johnson: Southwest Texas State Teachers College (1930)
    John F. Kennedy: Harvard College (1940)
    Dwight D. Eisenhower: U.S. Military Academy, West Point, N.Y. (1915)
    Harry S. Truman: University of Kansas City Law School (didn’t graduate?)
    Franklin D. Roosevelt: Harvard College (1903); Columbia Law School (didn’t graduate?)
    Herbert C. Hoover: Stanford University (1895)
    Calvin Coolidge: Amherst College (1895)
    Warren G. Harding: Ohio Central College (1882)
    Woodrow Wilson: College of New Jersey (now Princeton University) (1879)
    William H. Taft: Yale College (1878); Cincinnati Law School (1880)

    etc. And arguably, there are far more conceivable roads to the White House than to the Supreme Court (I’m thinking “compromise” Vice Presidents whose Presidents die or resign, military heroes, etc.)

    In any case, when you consider that the ABA has a committee devoted to “evaluation” of folks appointed to the Supreme Court, and the often silly rules people who wish to be admitted to the Bar in the various 50 states must adhere to (I love that Ohio won’t accept the Michigan multi-state bar exam — it’s the exact same test! — and requires you to finish law school within 4 calendar years to even be considered for admission,) well, further barriers to entry and more burdens for promotion to the highest profile lawyer job in town (including the assumption that if you aren’t at a Tier 1 school you’ll never even have a shot at the Supreme Court) shouldn’t come as a surprise.

    [compare requirements for a medical license in various states]

  38. Maren
    July 12, 2005 at 8:46 am

    Just as a side note, when I was serving in the Flanigan’s ward on my mission, Pres. Flanigan (who was President of the Asian Branch during George H.W. Bush’s campaign and first term, at least while I was there) would always invite the sisters in the English ward, where his family attended, and the sisters in the Asian branch, where he attended, for dinner. This was in addition to the ten children they still had at home. It was always a great experience. I personally witnessed him speaking on the phone to someone in the White House, explaining to them that he would be late for a meeting because he had to go give a blessing before hand. It was a neat experience to see such a great man. I would be very happy to see him nominated.

  39. Shawn Bailey
    July 12, 2005 at 1:26 pm

    Given comments hinting at a possibile appointment from beyond current federal circuit judges from Sens. Reid, Specter, and Leahy after meeting with the President, I wouldn’t be surprised by the appointment of Flannigan or someone similarly situated. See here:

  40. lyle stamps
    July 12, 2005 at 3:55 pm

    my bad; i admit that i confused Upitt with Upenn re: Hatch.

  41. July 13, 2005 at 12:20 pm


    It seems like your argument requiring membership in the bar distills down to something like: “Lawyers and judges use a unique language inaccessible to anyone who has not passed the bar exam and therefore anyone not immediately familiar with that language should be disqualified from making judgments concerning the law.” In a couple of posts you attempt to point out this complexity by throwing around some legal terms and issues you assume would be incomprehensible (or at least not easily comprehensible) to a lay individual. I think that a huge leap and indicative of immense hubris and condescension on your part at least if not the legal profession as a whole. I, as a layperson, can easily provide you with the defining characteristics and distinctions between a motion for summary judgment and a 12(b)(6) motion for failure to state a claim (if you doubt that ability I invite you to email me and I’ll supply that explanation). As for the case to which you alluded, Justice Thomas’ decision in NCTA v. Brand X is convoluted and wrong– and was decided using precedents that were also wrong. You seem to imply that training in the “language of the law” somehow prevents or inhibits legal decisions from being poorly reasoned. What evidence do you have to support such a claim?

    At the trial level the specialized training all members of the bar possess (or at least are assumed to possess) is valuable solely for the sake of efficiency. Imagine how long trials would take without the standardized rules of procedure– a simple dog-bite case could go on for weeks just negotiating the ground rules. But as one moves up the appellate hierarchy that specializtion becomes less and less valuable because the costs to society from allowing a very limited cohort to retain for themselves the exclusive province of interpreting the law begin to exceed the efficiency gains. I think that tipping point occurs, at the very least, when one gets to the Supremem Court. Including non-attorneys as members of the Supreme Court would go a long way to infusing new definitions of rationality that are part of the body politic back into the judiciary branch. You advocate the inclusion of only one type of rationality that is learned and practiced by attorneys. You might argue that attorneys are a diverse lot and that diversity mitigates any conformity that might arise from training but my experience with my friends, where I work, and at this blog is that they all approch issues using the same rational paradigm and that they have a very difficult time addressing issues not easily adaptable into that model. As an economist am I and my colleagues somehow not guilty of the same crime? Probably not. But that is why including a variety of rational paradigms in the Supreme Court becomes immensely valuable.

    I think it is important for contextual reasons to let you know that I did attend 1 year of law school. I was one of those JD/MBA candidates that spent his first year at the law school and his second at the B-school, served internships with both a large national law firm and a Fortune 500 company, and then made a quality of life decision not to return to the law school. Perhaps my basic familiarity with the law colors my impression– not that there’s anything wrong with that.

  42. Nate Oman
    July 13, 2005 at 12:46 pm

    Paul: I didn’t claim that understanding legal language insured good arguments or right conclusions. Far from it. My point is more modest. I see an understanding of legal language as a necessary (but not a sufficient) condition for being a good judge. I don’t actually have an opinion on the merits of Brand-X. I am not a big fan of Chevron, FWIW. My only point was that the issues presented by that cases were considerably more complicated and arcane than those presented by something like Roe v. Wade.

    No doubt you could explain the distinction between summary judgment and 12(b)(6) if you had a year of law school. This, after all, is what one learns in civil procedure. (I tend to think that getting the right answers in close cases probably benefits from more legal experience, but I could be wrong.) I think that you are wrong to confine the value of legal specialization to trial procedure. Issues can also become unmanagable on appeal. For example, I think that an understanding of how precedent is used by lower courts makes a difference in how an appellate judge writes a judicial opinion. Opinions can be poorly put together not only because they come to substantively mistaken positions but because they are not sufficiently attentive to how they can and must be used by lower courts. For example, Lawrence strikes me as an awful opinion independent of one’s views on the merits of constitutional challenges to sodomy laws. What on earth is Kennedy doing in the opinion? What level of scrutiny is being applied? Is it a due process case or an equal protection case? If it is an equal protection case, is it a suspect classification case or a fundemental rights case? In short, what on earth does Lawrence stand for other than the proposition that the criminalization of sodomy is unconstitutional? Obviously, this example shows that even legal training, membership in the bar, long judicial experience, etc. are not going to save us from the badly written opinion. However, it seems to me that you can’t get a sense of what constitutes a well written opinion without reading lots and lots of judicial opinions and seeing how they interact with one another and develop over time. Obviously, some one can do this on their own, just as someone can learn accounting, Belgian history, calculus, disco dancing, or economics on their own. The advantage of legal education is the same as the advantage of education in any of these other specialties. It provides some discipline and focus and helps to insure sufficient immersion in the subject matter that a person will simply go through a large volume of materials.

    From your past posts, it seems fairly obvious to me that you are rather upset at the current Supreme Court. Fair enough. Their failures, however, seem less tied to the fact that they are lawyers than to the fact that they on occasion use bad legal theories. It doesn’t mean that the long tradition that judges ought to be learned in the law is mistaken.

  43. July 13, 2005 at 2:32 pm


    So your value proposition is now something like: “Legal training helps ensure that justices will formulate decisions that will be considerate of the impact those decisions will have as precedent.” Again, I think this is a highly presumptive proposition in that it assumes that the lay person is incapable of understanding the down-stream affect of one’s decision. Business owners and managers make policy decisions every day and a major component of those decisions is understanding what sort of precedent that decision will set for the future. For example, if Manager X decides to discount his highest-end, most valuable product (a product that has never been discounted) for Customer A what sort of impact will that have on decisions when Customers B-Z come asking for discounts. Understanding the precedential (is that a word?) affect of decisions is the science of understanding why some people think the world rests on the back of turtle– or game theory to use a more technical term. Understanding game theory is not a strength of the legal profession– rather that is the domain of economists, mathematicians, and statisticians. So under the value proposition you proposed we should be seeking out economists, mathematicians, and statisticians for seats on the SC given that they are most adept at understanding the downstream impacts of their decisions. Arguments?

    You did not even address the main point of my previous post– that socialization in the legal field imprints upon its members a specific rational paradigm that so dominates their approach to law and everyday life that they are unable to evaluate issues from any other perspective even when another paradigm is required. The concept of “substantive due process” would likely have never been developed by a someone other than a trained and socialized attorney. The same goes with the reasoning in cases such as Giswold, Lochner, Plessy, and a whole host of others. I’m not trying to grind an axe here because I happen to disagree with the reasoning behind these cases. I’m merely pointing out specific concepts and cases where the rationale used to decide the case would only be internally consistent with what is taught in the legal profession– go outside the profession and that stictured rational paradigm and the decision and/or reasoning changes. I find the inclusion of only a single rational paradigm in the interpretation of the law a very costly proposition for society.

    As for the fact that a lot of what appellate court judges do passes for refereeing arguments on the more arcane points of procedure, that’s why law clerks are valuable– the same way a CEO still has a CFO, COO, CIO, and a whole host of VPs to provide guidance on the more arcane points of running a business.

    You also make an appeal to tradition– but I don’t see that tradition based upon any sort of emperical evidence. Perhaps you’re aware of some study evaluating the performance of judges who were not members of the bar (since 1930 when the “law school” became a convention). Keep in mind that the bar (just like any other licensed organization including MDs, CPAs, and cosmetologists) is nothing more than a system of imposing an externality on a market, the result being that consumers are forced to pay higher prices than they would in an unencumbered market. With all such professions the “value” associated with the services performed by members of this group is overinflated as is each members own sense of self-worth. My point is that the bar is artificial and society would likely benefit from its removal.

  44. Nate Oman
    July 13, 2005 at 2:49 pm

    Paul: My point about craft in judicial opinions is not about understanding the precedential effect of some particular decision. It is about understanding the precedential effect of written opinions that offer arguments and reasons in support of particular conclusions and an understanding of the way that the written opinion — not simply the particular outcome — becomes the law. CEOs do not manage their lower level employees by writing essays justifying their decisions that will then be construed using the concepts of dicta, holding, etc. by lower officials.

    Perhaps substantive due process — your particular bug-a-bear it seems — is some unique pathology of legal training. It is hard to say, since we are dealing with counter factuals. It is worth noting, however, that there have been an awful lot of people with legal training who have spilled an awful lot of ink attacking substantive due process. No doubt legal training socializes people into thinking in a certain way. Whether or not that socialization leads inevitably to the sorts of bad legal outcomes that you point to (and here all you seem to talk about is substantive due process, and your disagreement with Brand-X) is an entirely different question.

    My appeal to tradition is ultimately an appeal to history. Judges historically have been learned in the law. As a result, we have a system that has tried to distance law from politics and make it accountable to internal norms of coherence, authority, and integrity. Despite the obvious historical lapses of the judiciary, this has been, on the whole, a salutory development. The rule of law rests on the notion that law is in some sense autonomous of other forms of social norms and control. This, it seems to me, requires that legal learning mean something, that to say that a lawyer knows the law is not a meaningless statement.

    I am not arguing in favor of the guild protections of the bar, or even necessarily for modern legal education. Heaven knows that both of them have their pathologies. I am simply claiming that law has enough intellectual autonomy that its explication ought to be entrusted to those who know something about it.

  45. blaine
    July 13, 2005 at 3:19 pm

    Relevant post by Orin Kerr on the Volokh Conspiracy.

  46. Paul C. Norris
    August 10, 2005 at 9:37 am

    I’m hoping this is the same Tim Flanigan I ran with when we were in Falls Church Ward back in 1966-1970. Trying to track down some of the old group of priests and get re-connected. If so, would it be possible for a contact point? Thanks!

  47. April 13, 2006 at 3:50 pm

    Here’s an interesting article about Chiropracting Bill that’s in the Senate

    A lot of people choose to visit their chiropractors; sometimes even before their physicians when something’s wrong. But chiropractors say a bill in the U.S. Senate could take away insurance coverage for many of their patients.The idea behind S.1955 is to make it easier for small businesses to give their employees health insurance.Instead of going by Wisconsin’s mandated benefits, this plan allows small business organizations to pool their resources across state lines, saving them 15- to 30 percent… But those plans don’t have to give employees those guaranteed benefits.

    Chiropractors say those mandates make sure patients get the care they need, including diabetes treatment, maternity coverage and chiropractic care.
    And they say it would force many of their patients to cut down their care, or pay higher prices.”We should have the right to choose what kind of care we want for our families,” says Jean Gustafson. “If I had to pay cash for chiropractic, it might be difficult to get the level of care I know i need.”
    Many chiropractic clinics in Northcentral Wisconsin are letting their patients know about the bill and providing form letters to their senators, asking them not to support the bill.The American Chiropractic Association says people who want more comprehensive coverage will have to pay much higher premiums.
    We checked with our Wisconsin Senators: Senator Herb Ohl is still studying the bill and Senator Russ Feingold opposes it.

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