Judge Friendly on “Supreme Court fever” for Aspirational Circuit Judges

December 3rd, 2014

In Ron Collins’s excellent interview with Judge Posner, we find this gem courtesy of Judge Henry Friendly, advising his junior colleague about possible promotions to the Supreme Court.

Around Christmas of 1984, Judge Friendly inquired about Posner’s possible “elevation” to the Supreme Court. Even back then, Posner thought it doubtful. As he expressed it in a December 26, 1984 letter: “I have become an object of mysterious fascination to a segment of the press, which is doing a pretty good job of portraying me as a weirdo on the basis of some of my pre-judicial academic writing (misrepresented) and a handful of my opinions (misunderstood). Of course there is precious little I can do about any of this, but I am consoled by the thought that eventually the press will lose interest in me and move on to intrinsically livelier topics.”

Assuredly, Henry Friendly knew well what it meant to be a great judge but nonetheless passed up for a seat on the High Court. In a January 10, 1985 letter, he tried to console Posner: “These things are annoying but all this will pass. Unhappily this may not be without injury to your immediate prospects for elevation but I gather that you did not think these were very high in any event. You are wise to have acquired immunity for Supreme Court fever – a disease that has ruined many a judge.”

It’s a fascinating thought for Judge Friendly to write about “Supreme Court fever.” Three decades later, Judge Posner, along with his colleagues Lee Epstein and William Landes, explore the notion of Circuit Judges who “audition” for the higher office.

In chapter 8 we study the behavior of federal judges who have a realistic prospect of promotion. Desire for promotion is a significant motivating factor in many workplaces, and federal district judges are not infrequently (though not routinely) promoted to courts of appeals, while court of appeals judges are sometimes, though rarely, promoted to the Supreme Court ; at this writing, eight of the nine Supreme Court Justices are former federal court of appeals judges, although they are a tiny minority of all court of appeals judges. We ask whether aspirants for promotion within the judiciary alter their judicial behavior in order to improve their promotion prospects— in other words whether they “audition” for appointment to a higher court. Comparing the voting behavior of court of appeals judges when they are realistically in the promotion pool and thus potential auditioners with their behavior after age eliminates their prospects for promotion and with the behavior of court of appeals judges who were never in the pool, we find that potential auditioners do tend, though only on average, to alter their behavior in order to improve their prospects for appointment to the Supreme Court. We conduct a similar analysis of district judges’ auditioning for promotion to the court of appeals, with similar though weaker results . Auditioning behavior by judges is important evidence of the role of self-interest in the judicial utility function.

Epstein, Lee; Landes, William M; Posner, Richard A (2013-01-07). The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice (Kindle Locations 446-449). Harvard University Press. Kindle Edition.

One of the most oft-cited examples of this “auditioning” process was Circuit Judge John G. Roberts, who issued a decision on a detainee case that was favorable to the Bush administration, shortly before President Bush selected him to replace Justice O’Connor. Did JGR get, what his former boss call “Supreme Court fever.” I wonder if Judge Friendly gave similar advice to other law clerks?