Smart. Smart! Smart?
posted by Dave Hoffman
Oliver Wendell Holmes
One of the least attractive aspects of professional training in law is the tendency to equate smartness with judgment, and judgment with virtue. Though law school doesn’t tend to reward either judgment or virtue, law practice does – and, more significantly, correlates effort and success in a way that the First Year Exam system rarely does.
It’s therefore unfortunate that the debate over Judge Sotomayor’s qualifications to be a Justice has turned to questions about her brilliance. Rob Kar, in her defense, writes:
“Judge Sotomayor stands out from among these people as one of the very brightest; indeed, she is in that rarified class of people for whom it makes sense to say that there is no one genuinely smarter. (Others who have stood out in this way in my experience would include Harold Koh, the former dean of Yale Law School, and Peter Railton, a moral philosopher at the University of Michigan.) Judge Sotomayor is much smarter than most people in the legal academy, and much smarter than most judges who are granted almost universal deference in situations like this. And while I have worked with numerous people who are thought of as some of the best minds in the nation, and about whom the question of brilliance would never even arise, most of them are—quite frankly—pedantic in comparison.”
I’m not sure that Prof. Kar is entirely serious here, but his post was picked up by TPM in its influential roundup, which noted the spreading of the idea that Sotomayor was “too temperamental–and not intelligent enough–” to be a Justice.
There’s plenty wrong with this mindset. Not least, as Bill Stuntz points out, “[intellectual] horsepower alone isn’t enough to produce a lasting impact on the law.” Vivid writing matters, as does judgment, and an appropriate sense of judicial role and temperment. And, since the Justices are the highest profile lawyers in the country, so does personal history and demographics: lawyers should have professional models, to guide them in making hard decisions in the absence of judicial oversight.
As Orin points out, the quality of the information we use to evaluate the smartness of judges is terrible. So why the focus? I blame the Socratic Method, which teaches young lawyers that being a good lawyer is the same thing as being a good debater: quick, witty, cutting, etc. We don’t want the smartest justice. We want the wisest. Or at least someone who understands that smartness correlates with wisdom about as well as law does to justice.
May 6, 2009 at 6:13 pm
Posted in: Constitutional Law, Jurisprudence, Sociology of Law, Supreme Court, Uncategorized
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Responses (7)
Orin Kerr - May 6, 2009 at 6:38 pm
Dave,
I don’t see the connection to the Socratic Method. The Socratic Method does not reward intelligence; it rewards glibness. But as far as I know, no one claims to want a Supreme Court Justice who is exceedingly glib.
I think the focus on smartness, at least among so-called “legal elites”, is a product of a belief that judges who are wicked smart are often way way better than judges who are not.
For example, go back and read some opinions by Henry Friendly, one of the smartest lawyers of his day. Decades later, his opinions are just gems: They’re brilliant, engaging, and reveal a depth of understanding of the law that makes them the ideal starting point for learning. Legal elites want more opinions like that, and they reckon that one of those real smart types is probably the best way to get it.
In contrast, try reading an opinion by Justice Whittaker, who left the bench because he felt he just wasn’t up the intellectual side of the job. The opinions tend to be terrible: incoherent, messy, vague, and poorly reasoned. Legal elites want fewer opinions like that.
Now, no one could possibly argue that intelligence is everything, or even maybe the most important thing. But it’s pretty important, or so a lot of folks think.
Dave Hoffman - May 6, 2009 at 6:47 pm
I agree that being intelligent is necessary. But it isn’t sufficient. (I don’t think we disagree about this.) My point was that the easiest (and most foolish) way to evaluate smarts is to look at verbal glibness of a particular type. It’s harder to read lots of opinions and think about how they operated in light of existing 2nd circuit doctrine; and harder yet to think about a person’s accomplishment’s in light of their situation.
Some legal elites may want opinions by Friendly (or Harlan, my favorite). But others – the ones quoted in the TNR article – want opinions by a liberal Scalia. That is: funny, memorable, and, in my view, too often glib and obscure. (Recall the discussion we had about the meaning of Scott v. Harris!)
I do think that the Socratic method rewards glibness over care & diligence. Wasn’t that your experience, watching how the law school classroom operates?
Orin Kerr - May 6, 2009 at 9:16 pm
Dave,
As a student, I thought the Socratic Method was a wonderful teaching tool: It made us think deeply and hard about the law and its contours. Great stuff. The key is that the impact of the Socratic Method is primarily on the students not called on, not on the student who was actually called on. It rewards glibness for those called on, but that person is only 1 in 100.
shg - May 10, 2009 at 6:25 am
In praise of the Socratic method, one of the most critical skills a trench lawyer can possess is the ability to think quickly and effectively on his feet. You get one shot to have the rights words come out of your mouth in court, whether responding to a judge, questioning a witness or arguing to a jury.
The Socratic method puts a law student under the gun, forced to come up with the right answer (or at least a credible answer) under pressure. For other areas of law, this may not apply, or at least not as well or as clearly. But for trial lawyers, the Socratic method is an extremely useful pedagogical tool. Don’t think of it too poorly.
dave hoffman - May 11, 2009 at 10:56 am
Scott,
Good comment. I do agree that for trial lawyers, socratic questioning is a useful prepatory exercise. And I think that more generally it’s quite useful in forcing students to abandon bad habits of preparation they learned in college, which is primarily why I use it so heavily in class.
But there’s a cost. There always is. And, contra Orin, I think that the uncalled-on students may learn to value glibness & verbal dexterity in others, when in reality those skills play a very small part in legal judgment.
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