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It's All Academic

Publication Date: 
July 25, 2011
Source: 
The National Law Journal
Author: 
Karen Sloan

Professor Michael McConnell is quoted by Karen Sloan in this National Law Journal article on the decrease in legal academics receiving judicial and executive branch posts and why it could be related to their writings.

With one of their own sitting in the Oval Office, it's reasonable to think that legal academics might enjoy an edge in snagging nominations for plum judicial and executive branch posts. But law professors have received a relatively chilly reception in Washington of late, at least when it comes to high-profile positions that require the blessing of the Senate.

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With one of their own sitting in the Oval Office, it's reasonable to think that legal academics might enjoy an edge in snagging nominations for plum judicial and executive branch posts. But law professors have received a relatively chilly reception in Washington of late, at least when it comes to high-profile positions that require the blessing of the Senate.

The political realities of a closely divided Senate offer Obama reason to think twice about reaching into academia for nominees, since they tend to be more difficult to confirm than are judges, said Michael McConnell, director of the Stanford Constitutional Law Center and a former 10th Circuit judge. McConnell was a law professor at the University of Utah S.J. Quinney College of Law in 2001 when he was nominated to the bench by George W. Bush. His confirmation process was contentious, and McConnell was called a "bitter opponent of abortion rights" with "little use for church-state separation" by a New York Times editorial.

"I suspect if you go back 20, 30 years, you will find quite a few academics who have had difficult confirmation processes," McConnell said. "It's that academics write, and their writings are sometimes controversial. When you write a law review or a book, it's not like you are representing a client in court. You can't say, 'That's not what I really believe.' "

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Unlike law professors, judges operate within the confines of legal precedent, meaning their paper trail is often less controversial, said Robert Schapiro, a specialist in the federal courts who is the interim dean at Emory University School of Law. But Schapiro and McConnell agree that there's value in a bench made up of judges with diverse careers and different perspectives.

"I think academics make a certain contribution," McConnell said. "We sure don't want them to dominate, but we want a mix. There shouldn't be only one path to the bench."