Question: What do you think of an 11th “Commandment”: Whatever else you do, avoid writing anything on any potentially controversial topic (e.g. capital punishment, criminal justice, abortion, campaign finance, gay rights, women’s rights, corporate rights, environmental protection, etcetera).
Kozinski: I’m not so sure. You do have to do something to be noticed. Timidity may result in its own kind of failure.
In response to the increasingly-contentious confirmation hearings, there seems to be a rising perception that judicial nominees who have written on controversial topics are non-starters. As a result, those who aspire to become judges (the “Little Supremes“) may get the message that the safest passageway to Article III is to go the way of John Roberts or Elena Kagan–be successful and well-liked, but never take a controversial position on anything to make your confirmation hearing as simple as possible. (Both attended Federalist Society meetings, but neither were members). I think this is a serious mistake. Being milquetoast won’t get you noticed–especially when done so deliberately to avoid saying anything that could raise eyebrows.
But even more troubling, this pattern of going incognito deprives our society of some of the greatest legal minds. As Pamela Karlan–a brilliant attorney who the Obama Administration didn’t fight for a federal judgeship–explained, “trimming your sails” simply isn’t worth it.
Would I like to be on the Supreme Court? You bet I would. But not enough to have trimmed my sails for half a lifetime. Sure, I’ve done lots of things I regret over the years. But the things I regret aren’t the things that keep someone from being nominated or getting confirmed. I regret being unkind to people I love and respect and admire. I regret getting frustrated by little things. I regret never taking a summer off. I regret not being able to stick to a diet. But I don’t regret taking sides on questions involving the Voting Rights Act. I don’t regret helping to defend the constitutional rights of criminal defendants. I don’t regret litigating cases on behalf of gay people. I don’t even regret being sort of snarky.
Take a person like Eugene Volokh for example. Eugene is one of the greatest scholars of our generation, and over two-plus decades, he has written thousands of articles, blog posts, and op-eds on every legal topic you can imagine. The Ninth Circuit would benefit immensely from his appointment. However, think about his nomination from the White House’s perspective. Actually vetting every single blog post is practically impossible. No matter at how closely you read every single thing Eugene wrote, Media Matters and the Center for American Progress will find some obscure comment, when taken out of context, paints Eugene in a bad light. It’s what they do best. A shaky White House Counsel may simply say, “Nah. Not worth it. Let’s go with someone safer whose record is simple.” Pure applesauce.
The Executive Branch should fight to appoint exceptionally qualified jurists who have expressed themselves, rather than ciphers who have kept their nose clean in the hopes of one day getting appointed. The cipher problem is especially problematic for the advocate-nominee, who always represented a client’s views, and never articulated their own views. I’m looking at you John Roberts.
Leading up to 2016, this is a topic that should receive more thought. Perhaps one of the few benefits of the nuclear option is that Presidents no longer need to seek 60 votes for their nominees. The fifty-vote threshold, on the margin, should allow more qualified nominees with records to make it through the Circuit Court–but not Supreme Court–nomination process.
I am reminded of a book review written in 1996, in response to a book by Steven Carter about the Supreme Court nomination process, titled The Confirmation Mess.
This excerpt highlights that vapid confirmation hearings where nothing is discussed, gives a benefit to nominees who lack paper trails. In contrast, in substantive hearings where the issues are engaged, the nominee without a paper trail (perhaps a member of the Little Supremes) would have no advantage over the candidate with a prolific record. Indeed, the dynamics would be switched, so candidates with paper trails would be advantaged.
Further, a commitment to address substantive issues need not especially disadvantage scholars and others who have left a “paper trail,” as the received wisdom intones and Carter accepts (p 38). The conventional view is that substantive inquiry promotes substantive ciphers; hence the hearings on Robert Bork led to the nomination of David Souter. But this occurs only because the cipher is allowed to remain so–only because substantive questioning is reserved for nominees who somehow have “opened the door” to it by once having committed a thought to paper. If questioning on substantive positions ever were to become the norm, the nominee lacking a publication record would have no automatic advantage over a highly prolific author. The success of a nomination in each case would depend on the nominee’s views, whether or not previously expressed in a law review or federal reporter. Indeed, a confirmation process devoted to substantive inquiry might favor nominees with a paper trail, all else being equal. If there was any reason for the Senate to have permitted the testimonial demurrals of Justices Breyer and Ginsburg, it was that their views already were widely known, in large part through schol- arship and reported opinions–and that those views were widely perceived as falling within the appropriate range. When this is so, extended questioning on legal issues may seem hardly worth the time and effort. [FN30] More available writing thus might lead to less required testimony in a confirmation process committed to sub- stantive inquiry.
The author of this review, of course, is Elena Kagan. Confirmation Messes 62 U. Chi. L. Rev. 919 (1995).