Lurching Through The Audition Trap

Recently, Judge Ho of the Fifth Circuit issued a concurrence that cited my post, The Audition Trap. The allegations in this case were problematic. The defendant’s counsel told the magistrate judge that he had connections to a Texas Senator and other members of government. The counsel warned that he was “consider[ing] asking my Texas friends to write to you and ask why I have to continue waiting” for the resolution of a motion. The magistrate judge, who was seeking a federal district court appointment, agreed to an ex parte hearing with the lawyer.

Judge Ho observed:

Any judge who abuses his office to promote his own interests—including the desire for future appointment—has violated the judicial oath and doesn’t belong in his current post, let alone whatever new post he seeks. There are, to be sure, both honorable and dishonorable people on the bench—just as there are in every other segment of life. Just as there are no doubt those on the bench who have strong ambitions for future office, there are others who are happy to be public servants, but who would be just as happy earning their living by some other means. For the outside observer, however, it can be difficult to discern which is which. And therein lies the quandary for the dutiful judge. How should a good judge respond when it’s suggested that his exercise of judicial authority might be tainted by his private, personal desire for elevation to another post? . . .

Professor Blackman’s point is simple, but important. No one has the power to look into another man’s heart and ascertain his actual motivations or ambitions. So the accusation of auditioning is indeed irrefutable. Certain actions may seem like auditioning to some, but to others, it’s simply doing the job as the judge best sees fit. There’s no solution. So the good judge simply accepts that criticism is a fact of life—and that unrebuttable charges come with the job. The First Amendment guarantees the right of every citizen to criticize public officials—whether the criticism is fair or unfair.

Judge Ho and I are often accused of auditioning. And there’s no way to disprove the accusation. Who can look into our hearts to know our true motivations? But as I often remind people, if we are auditioning, we are doing so very poorly. The way to get ahead in the world is to keep your head down, make powerful friends, and avoid doing anything that could prove controversial. Look no further than Todd Butler’s nomination to the Fifth Circuit. Fight to overrule Roe v. Wade and you are stuck on the sidelines. Defend municipalities who violate the First Amendment rights of street preachers and you get a circuit court nomination.

The truth is that those who lob the auditioning accusation are those who are most likely to audition in their own careers. I noted in my post:

The fact that everyone auditions demonstrates why this charge is so common. As a general matter, people project onto others the flaws they see in themselves. If you accuse me of auditioning, you can be pretty sure this is something that you have done in the past. Think carefully.

I recently saw some suggestion that I was on some undisclosed payroll. I wish! The truth is that I speak my mind, which is not conducive to any paying client. Folks may recall that I had to resign from a job that offered a regular paycheck on a point of principle. I am grateful some outlets offer me modest honoraria to speak and lecture, but I always retain full control over my message–and I often withdraw works when the editing becomes too intrusive. Indeed, I wrote several posts publicly agonizing about whether to put some of my content behind a paywall as a means to generate some revenue, but I ultimately decided not to so my discretion would remain unfettered. By contrast, as a general matter, managing partners at firms play some role in setting the compensation of their colleagues. Like I said, people project onto others the flaws they see in themselves.

I wish things were different with the judicial selection process. I wish that Presidents would nominate those who were unafraid to challenge political orthodoxies. Steve Calabresi’s post today on the 40th anniversary of Justice Scalia’s swearing-in provides a flashback to a different time.

On June 14, 1986, Judge Scalia was invited to speak at a conference organized by Attorney General Meese. The timing was “risky” as President Reagan would interview Scalia for the Supreme Court vacancy on June 16.

Scalia could have played things safe, but that was not who Scalia was. Calabresi writes:

Given this, most lawyers would say something mild, uncontroversial, and ingratiating toward the attorney general. But Judge Antonin Scalia was not a normal, cautious lawyer. Indeed, as a law professor, he liked to teach against the views of his class and tell them things that they did not ordinarily want to hear. Or to make a more historical reference, Justice Scalia was the type of person who would speak to King Henry VIII as if he were St. Thomas More. He was temperamentally unable to flatter or to say something that he did not believe to be true.

And Scalia would not flatter the sitting Attorney General. He took the occasion to explain why Meese was wrong to focus on “original intent” and instead should focus on “original public meaning.” That speech set the stage for the modern originalist revolution. Scalia took a risk at the most inopportune time, and prevailed. And Attorney General Meese approved:

Ken Cribb, who was then Ed Meese’s counselor and chief of staff, cleverly took a name tent card from his table, folded it inside out, wrote “Stipulated” on it, and showed it to Attorney General Meese. Attorney General Meese nodded approvingly, and Cribb put the tent card saying “Stipulated” on the podium in front of Judge Scalia before the judge had even finished speaking.

On June 17, President Reagan nominated Scalia for the seat, and the rest is history.

Calabresi concludes:

Whether one agrees with their views or not, I believe this story shows how open-minded and humble Attorney General Ed Meese was, and how gutsy and principled Judge Antonin Scalia was. That’s something worth reflecting on four decades later.

Alas, that was forty years ago. Now we are stuck to Lurch through the audition trap.