April 06, 2004

Inside the Judge's Mind

by Chris Geidner

Today, Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit spoke as part of the Ohio State Moritz College of Law’s recognition of its 2004 graduates. Judge Sutton is an alum of the school and a former clerk to Supreme Court Justices Powell and Scalia. Sutton shared his views on what it takes to be a lawyer—basically, some thoughts on what Sutton thinks you should be thinking about if you’re just entering the profession.

Although Sutton has not been a judge long enough yet for me to agree—or find fault with—his judicial philosophy, from what I heard today I am glad he’s on the bench. Let me also say that this is the third time I have spoken with or seen Judge Sutton speak and I am still bowled over by his modesty about his own tremendous accomplishments and his passion for the profession of law.

There are two main ideas (and several more pragmatic pointers) to be taken from Sutton’s speech. First, Sutton quite clearly sees the goal of the law as a very empathetic one. In talking about being a lawyer, he said that the best lawyer is the one who can most “get inside the mind of the client”—who can see things from the client’s perspective. When asked about qualities important to judging, Sutton mentioned getting “inside the litigant’s mind” as one important aspect of judging.

Second, Sutton clearly sees a potential problem in the legal profession to the extent that competition, money, and prestige lead people to act in ways they wouldn’t otherwise act. He explained, in response to a question, that the need for balance is essential to any good lawyer. He—and this is where you see his passion most clearly—spoke about a lawyer being “inspired” and how a lawyer can’t write an “inspired brief” if there is no balance in her or his life.

This focus on balance as essential to being able to succeed as a lawyer circled throughout his speech. Sutton even spoke about how this increased effectiveness through balance should lead firms to be more understanding of how "quality of life" measures (his example, "leaving early on Fridays") actually improve the work product and thus the firm's success in the end -- even if it does take some short-term losses to get there.

When asked about judicial nominations, Sutton nicely summed up the intensity and difficulty of both receiving a nomination and getting confirmed: “First, lightning needs to strike. Then, you need to make sure you don’t get killed by it.”

Although Judge Sutton said he could “never” be a Posner or Easterbrook, his accomplishments thus far suggest otherwise. His thoughtfulness about the importance of others’ perceptions—and viewpoints—gives me great faith that his time on the judiciary will be well-spent.

April 6, 2004 04:38 PM | TrackBack
Comments

I'm a little surprised to see someone who's advocated strongly for the rights of the disabled and blogged passionately about the record of discrimination against them as a Jeffrey Sutton fan. Do you agree with his overall preference for limiting the federal role in civil rights protections, or just with his remarks in this particular speech?

Posted by: PG at April 6, 2004 05:30 PM

Liberal jargon. It's politics. What goes under the radar is that his father worked with the mentally disabled and Sutton -- as a high school student -- would volunteer and assist his father.

Federalism isn't the end of the world. Looking at the Garrett case hardly reveals any agenda against civil rights rather a concern over limiting the powers of Congress to go beyond the 14th Amendment. From a purely legal perspective, he's right: Congress can't go beyond it's Section 5 powers in remedying discrimination. It would be allowing the legislature to rewrite provisions of the Constitution.

These are people who think Bill Pryor will bring about the apocolypse.

Posted by: Brian at April 6, 2004 06:01 PM

Federalism certainly isn't the end of the world, but Sutton seems to spend much more time pushing for federalism than he does pushing states to be more protective of their citizens' civil rights, particularly with regard to disabled citizens. End result: he does more harm than good in this area.

[self-edits out irrelevant abortion comparison]

Anyway, I didn't realize Chris was much of a federalist. The things you learn about people when you blog with 'em...

Posted by: PG at April 6, 2004 06:20 PM

I didn't read Chris's entry as advocating Judge Sutton's positions. To be sure, Judge Sutton could be a great judge with all the great qualities that Chris has spoken of - and yet, Chris could wind up disagreeing with Judge Sutton on every opinion he writes.

Posted by: Shoo at April 6, 2004 06:42 PM

Thanks, Shoo, for reading my post. I specifically disclaimed any opinion on what his judicial philosophy might become in my post.

Second, and as to PG's comments and regardless of the merits of any federalism argument, Judge Sutton was an attorney representing a client at those times, let us all recall. As with now-Judge Michael McConnell, we specifically (as law students [or soon-to-be law students] who often put out our strong and even preliminary thoughts on things) should be sensitive to the reality that how a person advocates and how the same person judges might be quite different things.

Posted by: Chris Geidner at April 6, 2004 07:04 PM

Indeed. Senate Democrats couldn't seem to grasp the fact that Sutton was retained by the state of Alabama to represent them. Jeff Sutton, prior to ascending to the bench, was one of the most talented appellate advocates in the nation. His humility, as Chris notes, does not suprise me -- the man was a high school teacher and soccer coach before going to law school. As such, he has a greater perspective on society and life in general then most attorneys that go straight to law school or after a brief one or two year hiatus.

Posted by: Brian at April 6, 2004 10:43 PM

Sutton seems to have a judicial philosophy already, unless a restrictive view of the powers of the federal government no longer constitutes a judicial philosophy. As for his being purely an attorney advocating for a client, again, his own philosophy of law and government exists apart from that. Moreover, he was a state solicitor for Ohio, and sought to represent Alabama in the Garrett case rather than having that role be part of a pre-existing responsibility. Ditto with his writing an amicus brief in favor of overturning the Violence Against Women Act.

I'm not trying to portray Sutton as a bad person or a bad judge; he appears to be extremely intelligent, knowledgeable and effective. I was just surprised at Chris's taking a positive view of him due to some past discussion about federalism and disability rights.

Posted by: PG at April 6, 2004 11:03 PM

Brian, are you like writing the Sutton bio? Is this a campaign commercial? A little overdone, I must say.

And PG, sought out or not, those cases represent advocacy. Advocacy philosphy is not at all the same thing as judicial philosophy.

Posted by: Chris Geidner at April 6, 2004 11:48 PM

Nah... I actually took a short-course that he co-taught and he struck me as an even-keeled guy. I just thought it was a shame how he was dragged through the mud.

The "bio" is just my implicit response to your pointing out how he focused on being empathetic -- surely that's a quality teachers have.

As far as overdone, just promise me you'll post a copy of your cover letter when you send him your clerkship application. :)

Posted by: Brian at April 7, 2004 12:13 AM

Off topic, but I went to OSU's law school for my JD in the early 1970s. I don't recall it being referred to as the Moritz College of Law then. When did it acquire that moniker?

Posted by: raj at April 7, 2004 08:15 AM

When Mr. Moritz gave us $30 million a few years ago. Actually, it was just the OSU College of Law when Judge Sutton graduated in 1990. It only became Moritz about 2000.

Posted by: Chris Geidner at April 7, 2004 09:09 AM

Yeah, some donations are just too big to name a library after the giver. $30 million gets your last name stamped on the school, but apparently $100 million gets you first and last name (with middle initial)--see the University of Arizona James E. Rogers College of Law. What should a school do if the giver's name is unfortunately silly? Like Ruprick C. Buttkiss?

Posted by: Nick Morgan at April 7, 2004 11:29 AM

That's an easy one, Nick. Politely tell Mr. Buttkiss that, although his generous donation is greatly appreciated, because his name is Buttkiss, the school will not be named after him.

Posted by: Sean S at April 7, 2004 11:59 AM

I'll bite: what's the difference between advocacy philosophy and judicial philosophy? Federalism seems to be considered a credible judicial philosophy, and presumably part of the reason Bush nominated Sutton, so why would Sutton feel it necessary to adopt a new judicial philosophy once he hit the bench?

Obviously one can't advocate specific causes -- pro-choice, anti-execution, etc. -- on the bench, but I don't see why one can't hold the same view of the powers of the federal government as a judge that one did as a lawyer. Indeed, it seems rather insincere to change this view upon ascension. And these do seem to be Sutton's own views, and not merely the best defense of his client, the State of Ohio.

As for Mr. Buttkiss, hopefully he has a liberated mother or wife with a less embarrassing last name, after whom he can sentimentally name the law school.

Posted by: PG at April 7, 2004 12:30 PM

I think they should name at least the law library after me when I pay off my law school loans, which should be in about 75 years.

Posted by: Bob Abrams at April 7, 2004 03:16 PM

PG,

Actually I would think Federalism is always in the best interests of you client when your client is a state. ;p

To flesh out the Sutton issue a little more, in taking the Garrett case Sutton can show that he is pro-federalism while not necessarily being an activist against the rights of the disabled. It isn't always a zero sum game.

BTW, Sutton wasn't the Solicitor General of Ohio when he took the Garrett case, at that point he was in private practice. I can't imagine state officials are allowed to take outside cases.

Posted by: Brian at April 7, 2004 05:14 PM

Actually I would think Federalism is always in the best interests of you client when your client is a state. ;p

Probably so, but as you point out, Sutton chose to advocate on behalf of states for pro-federalism purposes even while in private practice. I don't think he ever chose to advocate on behalf of a state in a case like, say, BSA v. Dale, where state law was overridden.

And certainly one can be in favor of the rights of disabled while thinking that Congress is not the proper actor to protect those rights, just as one can favor the rights of homosexuals while thinking the courts should not read those rights into the state or federal constitutions (as Volokh apparently does). But as I said earlier, it's hard to take the "I love disabled people!" seriously if the bulk of one's effort ends up hurting rather than helping them.

Posted by: PG at April 7, 2004 05:23 PM

But as I said earlier, it's hard to take the "I love disabled people!" seriously if the bulk of one's effort ends up hurting rather than helping them.

I see PG's point but I think this is too simplistic. Should prosecutors be precluded from the bench, state or federal, because their efforts wind up "hurting" criminal defendants and thus, will wind up giving the back of the hand to ever serach & seizure argument they see? Should defense lawyers be barred because their advocacy might translate into a judicial philosophy that is too willing to find constitutional violation where none really exists?

Before attempting discern the differences that distinguish the disabled example from mine, let me convey my central point: I don't think it's even fair to call Judge Sutton's advocacy a philosophy for this immediately (and improperly) assumes that he is somehow married to it. Judge Sutton's "advocacy philosophy" cannot be divorced from the person himself. So how bout we call it Judge Sutton's advocacy, and how about we say that while the judge's advocacy may certainly be a factor in predicting his judicial philosophy (for you cannot divorce the judge from his decisions, and in this instance, nor should you), it is by no means fair to outright pigeonhole him. The nature of advocacy requires you have to decouple the advocate from the person - even if, in some instances, this will ultimately be irrelevant.

Posted by: Shoo at April 7, 2004 06:33 PM

Shoo, first of all, I am not saying that any particular viewpoint, as long as it is compatible with the broad outlines of the Constitution, should bar someone from serving on the bench. Second, I did distinguish between advocating particular causes, and the philosophy that undergirded the advocacy.

Obviously a criminal defense lawyer consistently would claim that the 8th Amendment precludes capital punishment, in order to prevent clients from being executed, even if he didn't really think so. But a lawyer who sought out cases of all kinds in which he could advocate an expansive reading of the Bill of Rights could be fairly described to hold an expansive view himself -- else why would he would he seek out opportunities to make that argument? Just to see if the Courts would bite?

Posted by: PG at April 7, 2004 07:48 PM

PG:

My concern with your thoughts on this topic is that you don't appear to envision there being any line in a judge's mind between what s/he thinks the law should be versus what s/he understands that the law is. This is all the more important a distinction for any judge outside the Supreme Court level, when adherence to existing precedent is mandatory.

Posted by: Chris Geidner at April 7, 2004 08:42 PM

In terms of Sutton's 'selectivity' of cases -- while he certainly was one of the top appellate lawyers in the nation, opportunities to argue in front of the Supreme Court just don't fall from the sky. A quick search of Oyez reveals that prior to Garrett, Sutton only argued one case before the Court in private practice and four in his capacity as Ohio Solicitor General. During his Judiciary Committee testimony he mentioned the fact that when you are given the opportunity to argue a case in front of the highest Court in the land, you take. Clearly it paid off as he argued multiple cases since. I can't fault the guy for wanting to: a) improve his resume, and b) enjoy the challenge and experience of Supreme Court advocacy. Just another factor to throw in the mix.

Posted by: Brian at April 7, 2004 09:24 PM

Sutton is the man. Leave him alone. The guy is a class act, and only the most extreme liberals could say the guy isn't a fair judge.

Posted by: Billy Bob at April 7, 2004 11:45 PM

you don't appear to envision there being any line in a judge's mind between what s/he thinks the law should be versus what s/he understands that the law is. This is all the more important a distinction for any judge outside the Supreme Court level, when adherence to existing precedent is mandatory.

Quite. But appellate judges don't always stick to precedent. Take Hopwood, for example, which Judge Smith has called his most memorable opinion. Nor was the 5th Circuit immediately slapped down by the Supreme Court for failing to adhere to Bakke; it took 8 years, a split decision and a new set of rules for affirmative action.

Yes, there are some standards so established, such as the Commerce Clause's enabling Congress to make anti-discrimination laws, that even a judge who privately thought these standards were not correct would have to stick to them anyway. But there's an area for which there is no precedent, and also area in which judges think the precedent is wrong and overturnable, and in these areas the judges' philosophy is very relevant indeed.

Posted by: PG at April 8, 2004 10:07 AM

Problem is that Bakke didn't lay out any clearly established precedent as five Justices could only agree that a state has a "substantial interest" in considering the race of an applicant -- so, in Hopwood, the tenuous nature of Bakke was swamped by Croson and similar cases.

I would also say that most (if not all) federal appellate judges have more integrity than to overturn precedent in the face of clearly established Supreme Court.

*Come on, let's shoot for 30 replies* :p

Posted by: Brian at April 8, 2004 04:41 PM

Hey, I'm doing my best -- at least a third of these are from me ;-)

I would also say that most (if not all) federal appellate judges have more integrity than to overturn precedent in the face of clearly established Supreme Court.

Certainly they do, as the lower courts refused to overturn Plessy when they were hearing Brown, leaving it up to SCOTUS to overturn its own precedent. But you're still ducking the fact that in cases like Hopwood or Newdow, the appellate judges are declaring a new policy that may end up being overturned. It doesn't make them somehow unethical to see the law as different from what 5 SCOTUS justices eventually will.

But, considering how many cases are never heard by SCOTUS, it does mean that their view of the law is quite relevant for all those areas in which the precedent is not clear. This strikes me as a fairly obvious fact.

Posted by: PG at April 8, 2004 04:58 PM

"But you're still ducking the fact that in cases like Hopwood or Newdow, the appellate judges are declaring a new policy that may end up being overturned. It doesn't make them somehow unethical to see the law as different from what 5 SCOTUS justices eventually will."

Oh, I agree with that, I just thought when you said this:

"...and also area in which judges think the precedent is wrong and overturnable, and in these areas the judges' philosophy is very relevant indeed."

... you were implying that an appellate judge who is predisposed to Federalism would overturn Roe/Casey or even pull a Guido Calabresi claiming desuetude can free the lower courts to question precedent. The Supreme Court clearly frowns on this practice as seen in Rodriguez de Quijas and I'd wager that even Judge Bill Pryor would agree with that.

Posted by: Brian at April 8, 2004 05:19 PM
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