There’s a debate online about the nomination of Todd Butler to succeed Leslie Southwick on the Fifth Circuit. Most of it is unedifying. To understand the actual state of play, I’d refer you to my two posts here at Bench Memos to understand the judicial politics, and then to the great Mike Hurst’s Twitter post explaining why he thinks Butler is a good pick. Hurst is general counsel of the RNC and a giant of the Mississippi legal right. I’d put him on the Fifth Circuit tomorrow, and he’d never vote wrong. He’s all-in for Butler.
Stepping back, though, there’s an interesting debate about the career paths that make for a good circuit judge. The allegation against Butler is that he’s just a private practice guy and therefore not cut out for Fifth Circuit work because stalwarts like Andy Oldham, Jim Ho, Don Willett, Cory Wilson, Kyle Duncan, and even the Democrats, had diverse professional experience including serious political work.
Hurst did a great job knocking down this argument by pointing out that Dame Edith Jones herself took the bench from private practice. One might respond that Judge Jones, in private practice, was general counsel for the Texas GOP, but that doesn’t get you very far when you consider that much of Butler’s work in private practice has involved representing the interests of very conservative government institutions in Mississippi. I’ve read all of his en banc petitions and they involve very conservative applications of qualified immunity to back law enforcement and right-wing jurisdictions. It’s not clear to me why being paid to advance positions championed by the likes of Edith Jones, Antonin Scalia, and Sam Alito is suspect but filing pro-bono or public-interest briefs bolstering the QI views of the ACLU is good.
Stepping back, the dispute goes to a bigger question. Is there an ideal path to the bench? A common parlor game in judicial politics circles is debating and determining the secret sauce to good judges. Is it a Supreme Court clerkship? Is it judicial courage? Is it political experience? Professors, perhaps, are paid to speak their mind, so we know they mean it. But they also live in la-la land and can’t empty a boot with instructions on the heel. Political appointees understand politics, but do they properly understand the intricacies of the law? And so on ad infinitum.
There is no secret sauce. Judge Southwick had real political experience as a Federal Programs DAAG at the Department of Justice and a track record on the state bench, but apparently is so undesirable a model that Butler is disqualified merely for having praised him in an article once. There was no fiercer political animal than Mike Luttig, both in government and on the bench, and now he’s chief justice of the resistance wine moms.
On the other hand, you have someone like Becca Taibleson on the Seventh Circuit who was a career AUSA and who has gone on to be quietly — but savagely — effective on her painfully centrist court. Or Dan Bress, the longtime Kirkland partner with no political experience, notching similar wins on the notorious Ninth Circuit. Even Tom Hardiman, one of the leading conservative lights of the appellate bench, was a biglaw lawyer in D.C. and Pittsburgh known to Senator Santorum and the Pennsylvania GOP to be solid. What was his track record?
As I’ve written here, Judge Alito was criticized by some as soft on abortion when floated for the Supreme Court. (Ha.) While Justice Thomas is a titan of the bench, it’s highly unlikely that someone with his background — Yale Law, in-house counsel, staff to a liberal Republican senator, EEOC — would make it far these days. There simply isn’t a replicable path to a known quantity all-star judge.
In the end, what makes a good judge is a judgment call by the judge pickers, cabined by political considerations on all sides. There simply is no Aristotelian focal case of the ideal judge, career and all. You can’t have Claude set up an algorithm of desirable career benchmarks and academic writings to grade nominees in what is an irreducibly humanistic enterprise. Judges are people who rule on cases involving people and they do so by interpreting and applying laws written by other people. It’s messy.
In the end, you look for indicia of talent, jurisprudence, and sound judgment and you look for them wherever you can find them.
That’s not to say there aren’t helpful heuristics. One is whether a person’s career has moved upward. That’s what Butler’s critics don’t seem to get. Moving around and getting diversity of experience is good if the career trajectory is upward. At the same time, staying put is fine if it also moves upward.
Take Butler’s case. He went to his firm, then he made partner, then he was put in charge of his office, then he was given responsibility for his practice group. He has presumably built and expanded his book of business. That’s because people around him recognize talent and sound judgment and — importantly, we are capitalists, after all — are willing to trust that talent and judgment with money.
Or take someone like Justice Kavanaugh. His career involved a lot of moves, but they all pointed upward: Law clerk, office of the solicitor general, Supreme Court clerk, Kirkland associate, associate independent counsel, Kirkland partner, associate White House counsel, staff secretary, D.C. Circuit, Supreme Court. Yes, he moved a lot because people recognized in him talent and judgment and therefore gave him more responsibility.
On the other side there are plenty of people who move a lot but they move laterally and without real increases in responsibility. For example, Justice Jackson’s wide diversity of experience prior to her time on the bench, to the careful judicial evaluator, implies someone who was failing to dazzle her peers and superiors with an overabundance of talent and judgment.
Again, talent and judgment are only two pieces of the puzzle and accurately considered necessary but insufficient for a good judge. They are, however, attributes that can be gleaned based on career tracks — public or private. Wherever you are, are you being given more and more trust and responsibility? In judge picking, you typically want the answer to be yes. With Butler, it is.