Should only law professors be appellate judges?

Professor Carl Tobias of the University of Richmond Law School offers advice to President-elect Obama here about the type of appellate judges he should appoint during his term. Professor Tobias' advice can be summed up in two words - "law professors."

Implicit in the good professor's piece is the clear suggestion that the federal courts of appeal (presumably including the Supreme Court) cannot perform their function effectively unless every judge or justice was a law professor before donning the robe.

All I can say is "WOW, what arrogance!"

Professor's Tobias' supports his premise by observing that "Much of the work that law professors undertake strikingly resembles the responsibilities that appellate judges discharge. For example, when conducting scholarship, academics objectively analyze, synthesize and criticize a series of case precedents, attempt to evaluate relevant legal issues from a "big picture" viewpoint, and proffer suggestions for improvements in the law."

So let me get this straight, only law professors are capable of scholarly research, analyzing legal principles and facts objectively, synthesis and criticism of legal precedent, seeing the "big picture," or suggesting improvements in the law? I guess you can't possibly be capable of those things if you actually practiced law or otherwise prospered professionally outside of an ivory tower.

Don't get me wrong. I don't have any problem with a law professor becoming a judge. There are a couple of them on my court and they are fine judges and demonstrate all of the characteristics noted by Professor Tobias. Of course most of my colleagues who have never been law professors exhibit the same abilities. I think that the best appellate courts are those with judges who came to the bench from a mix of backgrounds and with variety in their curriculum vitae.

Can you imagine if all of our past Presidents had subscribed to Professor Tobias' approach? We would have missed out on the contributions to the judiciary made by judges like John Marshall, Benjamin Cardozo, Oliver Wendell Holmes, Jr., or Learned Hand to name but a few.

As far as I'm concerned, the federal appellate courts are increasingly a judicial theocracy that is often out of touch with the real world in which the law operates. As the old aphorism goes, academics are capable of squabbling with each other with an intensity that is possible only because the stakes are so low. I don't think a solution to that problem is to put them in a setting where the stakes are much higher.


Thanks to my cyber-colleague Steve of Virginia Appellate blog fame for the tip.