RSS FeedPolitician for the Court?
Contra Ezra Klein and Matt Yglesias, I doubt that a politician would be especially effective—in the way that Earl Warren (who had been Governor of California before becoming Chief Justice) was effective in his day—on today’s Court. The legal technicians on the Court today understand as well as Warren did the importance of crafting arguments to hold together majorities and persuade their colleagues however they can. Justice Stevens, the consummate career legal technician, mastered this art. But the truth is that there’s not a tremendous amount of successful persuasion going on at that level. These guys know what they think going in, for the most part. And the skills of a contemporary politician—horse-trading and fundraising?—are not only inapplicable in a judicial setting, they’re totally out of bounds.
I do think it’s right to be focussed on persuasiveness, but you have to consider the audience. That audience comprises for the most part other lawyers, including other judges, law professors, and even law students. It’s important to try to persuade all these groups—or as much of them as you can—because in the long haul, arguments about the meaning of the law are stretched out over decades of cases.
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[...] other week I made a similar point about how the Justices probably don’t really persuade each other all that much. The relevant [...]