Why Barack Obama, as President, Should Nominate Leading Law Professors for Seats on the Federal Appeals Court

By CARL TOBIAS
Monday, Dec. 15, 2008

President-elect Barack Obama will receive much advice in the coming months. One valuable idea that his nascent administration should embrace and implement is nominating legal scholars to serve on the United States Courts of Appeals. Numerous legal academics are particularly well-suited to discharge the critical responsibility of delivering appellate justice.

President Reagan – But Not Presidents Clinton or Bush I or II – Strongly Favored Appointing Legal Scholars to the Bench

President Ronald Reagan used this concept to excellent effect over both of his administrations. The chief executive searched for, identified, and appointed many highly-respected legal scholars to the appeals courts. Illustrative were University of Chicago Law Professors Frank Easterbrook and Richard Posner, and Notre Dame Law Professor Kenneth Ripple – all of whom Reagan named to the Seventh Circuit -- as well as Yale Law Professor Robert Bork and University of Chicago Law Professor Antonin Scalia, both of whom the President appointed to the D.C. Circuit.

Yet selecting legal academics for the appellate courts apparently fell out of favor in the administrations of Presidents George H. W. Bush, Bill Clinton and George W. Bush. To be sure, these chief executives did choose a few legal scholars, but they were notable exceptions to the rule. For instance, President Clinton placed Yale Law Dean Guido Calabresi on the Second Circuit, University of California, Berkeley, Law Professor William Fletcher on the Ninth Circuit, and Case Western Reserve Law Professor Karen Nelson Moore on the Sixth Circuit, while President George W. Bush named University of Utah Law Professor Michael McConnell to the Tenth Circuit and University of Kentucky Law Professor John Rogers to the Sixth Circuit.

Why Legal Scholars Tend to Make Excellent Federal Appellate Judges

There are several strong reasons why President-elect Obama should carefully evaluate and nominate a number of legal scholars to the appellate courts. First and foremost, numerous academics will be very qualified to assume these important positions of public trust on those tribunals, which are the courts of last resort in their regions for 99 percent of appeals and which resolve numerous controversial questions.

Much of the work that law professors undertake strikingly resembles the responsibilities that appellate judges discharge. For example, when conducting scholarship, academics objectively analyze, synthesize and criticize a series of case precedents, attempt to evaluate relevant legal issues from a "big picture" viewpoint, and proffer suggestions for improvements in the law. Appellate judges, in turn, frequently read, evaluate and synthesize a line of opinions and apply their legal reasoning to the facts of specific cases.

President-elect Obama is especially well-positioned to seek out, identify, nominate and appoint well-qualified legal scholars. The new chief executive taught for years at the University of Chicago, one of the U.S.'s preeminent law schools, and personally knows many legal scholars. Moreover, numerous legal academics served as advisors to the Obama campaign and will hold significant positions throughout his administration. The President and those who assist him in choosing nominees should select legal scholars who have demonstrated that they are highly intelligent, industrious, ethical and independent and possess a balanced judicial temperament. In some ways, that final attribute may be the most important of all on appellate courts, which hear cases in three-judge panels (and sometimes also in larger en banc panels), because collegiality is essential to the tribunals' smooth functioning. Many academics appreciate the importance of that notion because collegiality is also critical to law faculty governance. The Obama Administration will be able to easily discern whether particular candidates possess the quality of collegiality by simply asking the candidates' faculty colleagues.

Examples of highly-qualified legal scholars who would likely make superb appellate judges abound. Illustrative are Harvard Law Dean Elena Kagan, Yale Law Professor Judith Resnik, Harvard Law Professors Lani Guinier and Cass Sunstein, who is Obama's former University of Chicago colleague, and Stanford Law Professors Pamela Karlan and Kathleen Sullivan. Five University of California Law School Deans are also excellent candidates: Christopher Edley of UC Berkeley, Kevin Johnson of UC Davis, Nell Newton of UC Hastings, Erwin Chemerinsky of UC Irvine, and Michael Schill of UCLA.

President Obama has vowed both to practice bipartisanship and to appoint excellent judges. One fertile source of nominees who possess the requisite expertise and temperament to be outstanding appellate jurists is the faculties of the 200 American law schools. Because legal scholars' work closely resembles that of circuit judges, choosing academics will allow President Obama to select candidates who are essentially known quantities, and to be confident that they possess the skills necessary to be distinguished federal appeals judges.


Carl Tobias is the Williams Professor at the University of Richmond School of Law.