Do we reward judges for auditioning or for refusing to audition?
Recently, a concurrence by Judge Ho of the Fifth Circuit cited my piece The Audition Trap. The case at hand had troubling elements. The defendant’s attorney told the magistrate judge that he maintained connections with a Texas Senator and other government officials. He warned that he was “consider[ing] asking my Texas friends to write to you and ask why I have to continue waiting” for a motion ruling. The magistrate judge, who was pursuing a federal district court appointment, agreed to an ex parte session with the attorney.
Judge Ho stated:
Any judge who misuses his office to advance his personal goals—including the pursuit of future appointment—has breached the judicial oath and does not belong where he is now, much less any future post he pursues. There are, no doubt, both virtuous and unscrupulous individuals on the bench—just as there are in every other strand of life. Some harbor strong ambitions for higher office, while others are content serving the public and would happily earn a living by different means. For an observer, however, distinguishing between these dispositions can be difficult. And that creates a dilemma for the conscientious judge. How should a good jurist react when it’s suggested that his use of judicial power might be tainted by a private, personal wish to climb to another post? . . .
Professor Blackman’s point is simple, yet significant. No one possesses the power to look into another person’s heart and determine his genuine motivations or ambitions. Therefore, the accusation of auditioning is, in a sense, irrefutable. Certain actions may strike some as auditioning, but to others they are simply the judge applying the office as he believes is appropriate. There is no remedy. As a result, a capable judge must accept that criticism accompanies public service—and that claims that cannot be rebutted accompany the job. The First Amendment protects every citizen’s right to criticize public officials—whether the criticism is fair or unfair.
Judge Ho and I are frequently accused of auditioning. And there’s no way to disprove the allegation. Who can peer into our hearts to determine our true motives? Yet I often remind people that if we are auditioning, we are doing so with poor results. The route to advancement is to keep a low profile, cultivate influential allies, and steer clear of anything that could provoke controversy. Consider Todd Butler’s nomination to the Fifth Circuit. If you push to overturn Roe v. Wade, you end up on the sidelines. If you defend municipalities that trample First Amendment rights of street preachers, you secure a circuit court nomination.
The truth is that those who throw around the auditioning charge are often the ones most inclined to audition in their own careers. I noted in my post:
The fact that everyone auditions explains why this accusation is so prevalent. In general, people project onto others the flaws they themselves perceive. If you accuse me of auditioning, you can be fairly certain this is something you have done in the past. Reflect carefully.
I have recently encountered suggestions that I am on some undisclosed payroll. If only it were true! The reality is that I speak frankly, which does not appeal to paying clients. Some readers may recall that I was compelled to resign from a job offering a regular salary on principle. I am grateful that some outlets provide modest honoraria for lectures, but I always maintain full control of my message—often withdrawing pieces when edits become too intrusive. In fact, I composed several posts publicly wrestling with whether to place some content behind a paywall as a revenue strategy, but ultimately decided against it so my discretion would remain unfettered. By contrast, as a general rule, managing partners at firms participate in setting colleagues’ compensation. As I noted, people project onto others the flaws they see in themselves.
I wish the judicial selection process looked different. I wish Presidents would nominate individuals who were unafraid to challenge political orthodoxy. Steve Calabresi’s post today commemorating the 40th anniversary of Justice Scalia’s swearing-in offers a retrospective to a different era.
On June 14, 1986, Judge Scalia was invited to speak at a conference organized by Attorney General Meese. The timing was deemed “risky” since President Reagan would interview Scalia for the Supreme Court vacancy on June 16.
Scalia could have played it safe, but that was not his nature. Calabresi writes:
In this context, most lawyers would say something mild, noncontroversial, and flattering toward the attorney general. Yet Judge Antonin Scalia was not a typical, cautious advocate. As a law professor, he enjoyed challenging the views of his own students and telling them things they did not generally want to hear. Or to put it in a broader historical frame, Justice Scalia spoke to King Henry VIII as if he were St. Thomas More. He could not flatter or utter something he did not believe to be true.
And Scalia did not flatter the sitting Attorney General. He seized the moment to argue that Meese should abandon a focus on “original intent” and instead emphasize “original public meaning.” That address helped inaugurate the modern originalist movement. Scalia took a risk at the least opportune moment and prevailed. And Attorney General Meese approved:
Ken Cribb, who was then Ed Meese’s counselor and chief of staff, cleverly pulled a name tent card from his table, turned it inside out, wrote “Stipulated” on it, and showed it to Attorney General Meese. Meese nodded approvingly, and Cribb placed the tent card marked “Stipulated” on the podium before Scalia had finished speaking.
On June 17, Reagan nominated Scalia to the seat, and the rest is history.
Calabresi closes:
Whether one agrees with their views or not, I believe this story illustrates how open-minded and humble Attorney General Meese was, and how bold and principled Judge Scalia was. That is a lesson worth reflecting on four decades later.
Alas, that was forty years ago. Today we find ourselves stuck navigating the lure of the audition trap.
