Where Is the Love... for Judge Frank Easterbrook?

For some two decades, Judge Frank H. Easterbrook has been one of the brightest stars in the federal judicial firmament. In light of his reputation as a legal genius, as well as his well-known conservatism, it's not surprising that several of you have written Article III Groupie with basically the same question: Why is Judge Easterbrook seldom mentioned as a possible Supreme Court short-lister?

(Yes, A3G realizes that the question is somewhat academic, since (1) we're stuck for the time being with Harriet Miers, and (2) the next Supreme Court vacancy might not come up anytime soon. But it's still an interesting inquiry that merits consideration.)

The following email about Judge Easterbrook is representative:

A3G, I'm a huge fan of your blog. Perhaps you can help me with a nomination question. I've always considered Easterbrook the best writer in the judiciary. He's sharp, smart, and fun. (He's also somewhat difficult to be around, based on his moot court trip to Michigan, but that's for another time). I also seem to recall that he "objectively" ranks as the second best judge in the federal judiciary after Posner. [Presumably the writer is thinking of this interesting analysis of judicial performance, by Professors Stephen Choi and Mitu Gulati.]

So why is this guy never considered for the Supremes? 

And here's another such email, sent to A3G shortly after Justice Sandra Day O'Connor announced her retirement:

Over the past 10 days we've heard every name from John Breaux to Ann Coulter as a potential replacement for SOC.... I'm no veteran Article III watcher, but I've been surprised that I haven't seen the first mention of Judge Frank Easterbrook as even a remote possibility for promotion. On the surface, he seems like a plausible nominee: impressive service in the SG's office, a prolific academic career, many years' service on a significant appellate bench, constructionist/Constitutionalist judicial philosophy (from what I can gather)...

In addition to the positive attributes identified by these two readers, here are a few more cool things about Judge Easterbrook:

1. He's a judicial hottie (male hottie #2).

2. Not only are his opinions excellent, but he writes them himself.

3. He is not afraid to have fun in his judicial and scholarly writings. He once cited the video game "Missile Command" in a law review article, and he referenced "Space: 1999" in the footnotes of a judicial opinion. (Gavel bangs: Ted Frank, who clerked for Judge Easterbrook.)

4. He has a cool brother, Gregg Easterbrook, who writes the "Tuesday Morning Quarterback" football column for NFL.com.*

So, in view of these fun facts -- plus his impressive credentials, relative youth (under 60), and solid conservatism -- why doesn't Judge Easterbrook get talked about more as a possible Supreme Court nominee?

Here are a few possible reasons for Judge Easterbrook's inability to generate SCOTUS buzz, some from readers of this blog and some from A3G (with reactions from A3G indented):

1. "Did Hudnut scare off too many people?"

It's possible; but why should it? Judge Easterbrook's ruling, while perhaps controversial in some quarters, was eminently defensible as a legal matter -- which may explain why the Supreme Court summarily affirmed.

2. Judge Easterbrook cruelly declined to be interviewed by A3G for her celebrity interview series, Questions Presented (even though he sat down for this great interview with Howard Bashman of How Appealing).

Alas, A3G can only dream of having such power... And she is still looking for her next interviewee, by the way. (Don't forget: judges who come out and play with A3G get much more favorable coverage in UTR than judges who shun her company!)

3. Judge Easterbrook is a member of the Great Unwashed.

To be sure, having clerked for the Supreme Court is becoming increasingly important as a credential for federal judicial service, especially for service on the Supreme Court. But it's by no means essential. Of the current members of the Court, only three -- Chief Justice Roberts, Justice Stevens, and Justice Breyer -- are former Supreme Court clerks. And a Supreme Court clerkship is just one of many qualifications missing from the resume of Harriet Miers. So this probably isn't what's holding back Judge Easterbrook from a seat on the Court.

4. Judge Easterbrook is a member of the great unwashed. According to a UTR reader, "there's a story that in his early days at Chicago, one of his colleagues had to take him aside and suggest that a more frequent use of the shower and an occasional indulgence in deodorant would be collegial, at the least."

Obviously this is not a positive attribute. But would substandard hygienic habits be enough to torpedo one's chances to making it to One First Street? A3G thinks not. After all, no one has ever said that Justice Ginsburg smells like a spring rose!**

5. Judge Easterbrook lacks a "judicial temperament." Indeed, unlike the affable Chief Justice Roberts, Judge Easterbrook is known to have a temper (as previously reported in this blog). One UTR correspondent says that Judge Easterbrook is known for being "hell on lawyers, many of whom find him simply sadistic, and not very easy on his clerks either.  And then there's his rigid insistence on form in filing briefs."

Fine, so Judge Easterbrook bench-slaps lawyers sometimes; but so does Nino. Judge Easterbrook can be tough on his clerks; but so can Ruthie. Being harsh and occasionally difficult, while not exactly plusses for one's SCOTUS candidacy, would not be disqualifying factors, at least not standing alone.

6. Judge Easterbrook is too independent a thinker and/or too libertarian to be selected for the Court.

This explanation for Judge Easterbrook's inability to get SCOTUS traction may be the closest to the truth. As one UTR reader put it, "Perhaps the fact that his resume includes service for Robert Bork AND Jimmy Carter gives both sides pause when they contemplate the idea of Associate Justice Easterbrook."

Here's A3G's theory on selecting Supreme Court nominees: What every president is looking for in a Supreme Court nominee is "a principled hack." This contradiction-in-terms sounds nonsensical, but it's actually quite logical; allow A3G to explain.

Presidents want the justices that they appoint to be political hacks -- i.e., reliable votes in favor of the president's desired political outcomes, be they liberal or conservative. But presidents also want their nominees to have a pre-confirmation record of adherence to principle. Besides being a good thing in and of itself, a record of being principled may facilitate the confirmation process, by allowing the candidate to defend prior rulings or past actions by saying, "Hey, look, those weren't my personal views; I was just following certain principles." Once the nominee gets confirmed, the ability to appear principled continues to be a helpful, since the nominee can justify votes in favor of a particular outcome by reference to a larger jurisprudential framework (e.g., the originalism of Justice Scalia, or the originalism-with-minimal-stare-decisis of Justice Thomas).

Jurists like Judge Easterbrook, Judge Posner, and Judge Kozinski are very committed to principles and the rule of law (which is why they are so widely admired, in addition to being brilliant). The problem with them as Supreme Court nominees comes from the second part of the test: they are insufficiently hack-like. They are not rigid enough in their voting patterns, occasionally voting for outcomes that are politically unpalatable, when their review of the law convinces them that such a result is required. In short, they vote with their consciences, deciding cases based on their honest views of the law, with no consideration for how their ruling might affect their possibilities for promotion.

Does this mean that judges who are perhaps more consistent and predictable in their voting patterns -- folks like Judge Luttig, Judge Wilkinson, and Judge Alito -- are not following the law? No, not necessarily. These three judges are also widely viewed as being conscientious jurists, who occasionally vote for non-conservative outcomes. It's just that, perhaps conveniently for them, their conscientious reviews of the law take them away from conservative outcomes with less frequency than the analyses conducted by judges like Kozinski, Posner, and Easterbrook.

Of course, A3G's "principled hack" theory is arguably called into doubt by President Bush's selection of Harriet Miers as his Supreme Court nominee. Although she may turn out to be a principled hack if and when she is confirmed to the Court, her virtually non-existent pre-nomination record reflects neither an intellectual commitment to jurisprudential principles nor a hack-like commitment to conservative outcomes.

Back to the question that kicked off this post: When it comes to SCOTUS consideration, why is it that Frank Easterbrook "can't get no respect"? If you have any thoughts to add on this, please share them in the comments or in an email to A3G. (If you email A3G and never hear back, however, please don't be offended; unfortunately, she is unable to reply to most of the emails that she receives.)

(Update: There are some pretty funny comments in the comments to this post; be sure to check them out.)

* A UTR reader has this to add about the very impressive Gregg Easterbrook (which suggests that genius runs in the Easterbrook family):

Gregg Easterbrook writes the "Tuesday Morning Quarterback" football column for nfl.com. When he's not writing this column, he gets all scholarly in his roles as senior editor of The New Republic, a contributing editor of The Atlantic Monthly, and a visiting fellow at the Brookings Institution. He indeed has an impressive pedigree for a football columnist.

His style is very similar to yours, which is, as diva ex-con Martha Stewart might say, a "good thing." His columns are known for their epic length, football haikus, criticism of nouvelle cuisine menu items (like [his recent] mention of "lobster-filled corn dog with black truffle sauce"), and cheerleader analysis (including the occasional "cheer-stud" bio for "female and non-traditional male" readers, and his theory that in December "cheer-babe professionalism" requires shunning sweatsuits and continuing to wear skimpy outfits).

Occasionally esteemed brother Frank will make an appearance, including once last season to weigh in on the physics principles that render impossible one of the premises of a recent James Bond movie. This week's column is available here.

** Far from suggesting that Justice Ginsburg has a body odor problem, A3G is merely making the literal statement that she has never heard anyone utter the sentence, nor read an email stating, "Justice Ginsburg smells like a spring rose!" But if you have any personal knowledge of what RBG smells like, perhaps including information about any deodorants and/or perfumes she employs, please feel free to email A3G.

Comments

[The Law Fairy]

The Easterbrook hygiene rumors are RAMPANT at Chicago (where he teaches a class or two each year -- which people approach with a mixture of insatiable curiosity, whorish attention-seeking and paralyzing fear). Our law school's musical has featured him in various states of uncleanliness (actual line to Easterbrook: "Why is there a bone in your beard?"). Posner baby-selling jokes are also reliable fallbacks.

What's more than just a rumor, though, is Easterbrook's reputation for just plain being an asshole. I'm not talking being harsh to lawyers or clerks. He's outright RUDE to colleagues, e.g., fellow law professors. I have observed this behavior (frankly, as immature as it is intimidating). He's one of the meanest people I've ever tried to avoid a conversation with. Try charming a successful politician like the president with that attitude.

[k]

There is a much simpler reason than you are hypothesizing for why Judge Posner has never made the short list:

Elizabeth M. Landes & Richard A. Posner, The Economics of the Baby Shortage, 7 J. LEGAL STUD. 323 (1978).

Imagine him discussing this article in a televised confirmation hearing.

[G]

Eastbrook is the most brilliant questioner I have ever heard from the bench. Rumor has it that his ecentricities stem from being confined to a sterile bubble as a small child; after years of limited human contact, he hasn't quite got it right. I'd be interested to hear if others can confirm this. But he really is about the best thinker in the judiciary. If merit mattered, he'd be on the Court. I think he's an A+.

[Swan]

If you're regretting that there's not going to be a liberal nominatee, then it's natural to want them to at least pick a conservative whose opinions will be well-written and (relatively) entertaining to read for the next 20 years, or whatever.

But when you consider how these people are probably going about the nomination process, I think it becomes pretty clear than an Easterbrook isn't what they're looking for. With something as publicized as a Supreme Court nomination, it seems like they'd want someone whose appointment will contribute to the image of the GOP- and thereby to the electibility of GOP candidates for the long-term. So they think about how the person will look to their base, and they think about how the person will look to swing voters who they can maybe get to swing the GOP's way.

With this kind of WH, I don't think the appointments have so much to do with the bench for the bench's sake.

[Jason]

There's something funny about the characterization of SCOTUS justices as "principled hacks" on the one hand with the adoration heaped on them here on the other hand.

Can this be reconciled?

By the way, as a fairly-far-lefty, I would never be called a Nino fan. On the other hand, his dissenting opinion with Stevens in Hamdi (which, as a brand-spankin' new law student, I read in CivPro a few weeks ago) would, I think, be evidence that he is anything but a hack. He is, I think (in my admitted ignorance), too principled to be a hack.

[David]

I took a seminar in Legal Interpretation with Judge Easterbrook recently and, though my nose is quite sensitive, didn't notice any foul odors coming from FHE.

[Matt]

I was in law school in Chicago (no, not there) (no, not there either) in the early 90s and there was a federal judicial titan back then known as PosnerEasterbrook. Perhaps this person was in the front of people's minds because this was around the time of the Thomas nomination. My point being that if this PosnerEasterbrook still exists as a mythical two-headed titan of the Seventh Circuit perhapns FHE is too closely associated with Judge Posner to be a cerdible SCOTUS candidate. In two respects.

One is the "splitting votes" theory that most often arises -- as I'm sure Gregg Easterbrook will tell you -- in determining the Most Valuable Player of a sports league. That is, if you have two credible MVP candidates from the same team, the theory is that voters split their votes between the two, to the benefit of now-MVP Option C.

Another is that Judge Posner is probably to intimidatingly scary to ever be nominated himself. Just being tasked with reading everything he's ever written in the vetting process would be daunting! So maybe being conjoined with Judge Posner, who is unlikely to be nominated because of his prolific and, some would say, quirky writings is to FHE's detriment, SCOTUS-wise.

[John]

A3G,

Judge Posner is a lot of things (brilliant, prodigious, recalcitrant), but "principled" is certainly something he is not. Posner routinely flouts precedent when he feels like he can develop a more sensible resolution to the problem before him, and he then masterfully bends precedent to look like it compels (or at least tolerates) the solution he's devised. He is the very definition of an "activist" judge if that term is to have any meaning, even if his decisions are usually correct.

There's an old rumor about why Easterbrook did not clerk for SCOTUS. Justice Brennan recalls that he had many clerks and interviewees throughout his years on the bench that were almost certainly smarter than he was; but none, like Easterbrook, who would ever tell him so to his face. Easterbrook is widely regarded as an arrogant megalomaniac. That may have something to do with his not being a favored SCOUTS candidate.

[J]

I've also heard that he smells horrendous. Apparently it is difficult to eat anything when you have a meal with him.

I've seen him in a moot court setting. He was brilliant in his questioning, (and in my view right in his analysis), but he also openly insulted a completely overwhelmed law student.