Smart. Smart! Smart?
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.