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Pam Karlan and Souter's Seat--Stuntz

If Obama wants to appoint a Scalia for the left, he should choose Pam Karlan, a longtime colleague of mine at Virginia who now teaches at Stanford. Pam is (1) brilliant, (2) broadly knowledgeable — Cass Sunstein aside, I can’t think of anyone who knows so much about so many different legal fields — and (3) a spectacularly gifted writer. The last point matters enormously. Robert Jackson served only thirteen years on the Supreme Court, but his opinions remain influential today because of his talent with language. Many judges and justices leave their mark on the law because of their votes. Only a few have influence that lasts beyond their lifespan, and the common thread in those judicial careers is an uncommon ability to capture a complicated argument in a memorable phrase. Henry Friendly, Learned Hand, Louis Brandeis, Oliver Wendell Holmes, John Marshall — all had that talent, and many of those phrases survive and shape legal doctrine today. Intellectual horsepower helps, but horsepower alone isn’t enough to produce a lasting impact on the law. David Souter is a perfect example: he may be among the smartest Justices to serve on the Court, but he seems incapable of producing clear, tight opinions. A couple decades hence, few will cite his work.

 The opposite is true of Justice Scalia, whose outsized influence stems from his ability to write captivating, scathing, and often funny opinions. Of the names I’ve seen mentioned, Pam and the D.C. Circuit’s Merrick Garland are potentially in that league; my former boss Elena Kagan may be as well. I’m not sure who is the wisest of the three, but Pam is the best writer. I know no one else who can turn out so much work that is so pleasing to read. Plus, she can be devastatingly funny. That is a recipe for the kind of influence that lasts.
 
Most presidents miss this point. One hears a lot about the smarts and experience of judicial appointees, but rarely about their language skills. The same is true in my line of work: productivity and intelligence count far more heavily in academic hiring decisions than a knack for the perfect turn of phrase. That is a mistake. The legal and academic markets are filled to overflowing with smart opinions and law review articles. The ones that stand out are fun to read — and those are few and far between.
 
 

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Comments ( 11 )

Thanks for this thought, Professor Stuntz. It is probably the most useful thing I've seen so far on the question of Souter's successor.

No white girls! Lani Guinier, revolutionary mama! She's the real thing.

"Cass Sunstein":

- wants to outlaw all hunting.

He may know a lot about laws but he doesn't know jack doodle about anything else.

And these are not the kinds of people we want on our Supreme Court, judging us. They are not worthy.

Dear Mr. Stuntz: Not everyone agrees with you. Byron White once told one of his clerks, "You write very well." Pause, while the clerk blushed and stubbed his toe. Then this killer: "Justice Jackson had that problem too." (From Dennis Hutchinson's biography THE MAN WHO ONCE WAS WHIZZER WHITE.) It's worth noting that Jackson's opening address as Nuremberg prosecutor was 24 karat gold, hailed with hosannahs. But once Jackson had to actually cross-examine, his style fled, pursued by brickbats.

Jackson's phrases are still remembered:

"We are not final because we are infallible, but we are infallible only because we are final."

"We must not turn the Bill of Rights into a suicide pact."

What opinions did these phrases come from? Can anyone but John Q. Barrett name a Jackson opinion besides his dissent in KOREMATSU, or his concurrence in YOUNGSTOWN? (I'd be hard pressed after those two.)

Or take Holmes, author of the memorable phrase from BUCK v. BELL: "Three generations of imbeciles are enough." Mencken, sympathetic to Holmes had the answer to that one: "So charming---and so vague."

Mencken is right. Law professors like lively readable opinions, because they have to read so many of them without falling asleep or taking up an honest career as an arsonist. You say Scalia has outsized influence. How often does this influence translate into majorities? Judged this way, Scalia suddenly looks more like a longshoreman at the ambassador's ball, cleaning the place out with his blackjack, instead of the conservative superhero, jumping over Billyboy Brennan's grave in a single bound. Scalia would have been a better judge if some of his opponents had slapped him across the face with gloves and told him that the seconds would arrange the details of the interview to come. Coalition building is also a skill needed by the ambitious Justice.

Besides, how many Justices write their own opinions any more? After THE BRETHREN and CLOSED CHAMBERS, the laity, of whom I am one, may be excused for believing that the little detail of opinion writing is handled by clerks, when they are not taking notes for kiss and tell memoirs as Lazarus did that will make them the real money the judiciary needs, or sending vicious "screw-the-opposition" emails to their allies in the game of Grand Theft Auto that they think they are playing.

How about someone who is outside the federal judiciary? Maybe a practitioner who doesn't feel the need to write memoirs on company time, go abroad to be told how reactionary American Law is, lecture in echo chambers, or engage in leaking to Linda Greenhouse. Or maybe even a politician. Why not put Arlen Specter in? He'll soon be available and at 79, he has the seasoning John Paul Stevens has proved to be essential to the job.

Sincerely yours,
Gregory Koster
(not of CUNY)

Can anyone but John Q. Barrett name a Jackson opinion besides his dissent in KOREMATSU, or his concurrence in YOUNGSTOWN? (I'd be hard pressed after those two.)
His dissent in SEC v. Chenery is pretty widely known.
Why not put Arlen Specter in? He'll soon be available and at 79...
Answered your own question after only six words! :-)

Mr. Koster,

It's perhaps a minor rejoinder to your overall point, but Jackson's majority opinion in West Virgina v. Barnette, besides being of tremendous importance to First Amendment law, has some memorable and even beautiful writing. It's always the first thing I associate with him (aside from Nuremberg)

RR

As a fan of Scalia's (both his writing style and, most of the time, his jurisprudence), I expect I wouldn't like much about Prof. Karlan's substantive legal views. But after reading the commencement address Orin linked to at Volokh, I have to say it would be a delight to read her opinions. The appointment of such a brilliant writer would be a real coup for the legal left (and likely bad for folks of my pursuasions) for exactly the reasons you say, but I can't help hoping it happens anyway.

Mr. Koster,

Not to pile on, but two terrific cold war immigration law dissents (ex rel Mezei and ex rel Knauff) come to mind, as does a case dealing with servicemen's rights, Willoughby v. Orloff. The immigration dissents are gems and Willoughby turns more than one gorgeous phrase--and also mattered. Because I'm a labor person, I would also point you to Garner v. Teamsters Local whatever the number was.

Mr. Koster,

It's perhaps a minor rejoinder to your overall point, but Jackson's majority opinion in West Virgina v. Barnette, besides being of tremendous importance to First Amendment law, has some memorable and even beautiful writing. It's always the first thing I associate with him (aside from Nuremberg)

As a fan of Scalia's (both his writing style and, most of the time, his jurisprudence), I expect I wouldn't like much about Prof. Karlan's substantive legal views. But after reading the commencement address Orin linked to at Volokh, I have to say it would be a delight to read her opinions. The appointment of such a brilliant writer would be a real coup for the legal left (and likely bad for folks of my pursuasions) for exactly the reasons you say, but I can't help hoping it happens anyway.

Professor Stuntz, I'd actually been a long time fan of Scalia and never heard of Pam until today. I'm always welcome for change so I'm all for researching Pam and giving her a chance, though I'd like to see her credentials side by side with Justice Scalia.