The Senate has just confirmed Allison Jones Rushing to the U.S. Court of Appeals for the 4th Circuit. As with many of the Trump administration’s nominations, it was decided by a straight party vote (53 to 44). Democrats opposed her nomination for lots of reasons, as HuffPost reports:
She worked for Alliance Defending Freedom, a conservative Christian organization that has been classified as a hate group by the Southern Poverty Law Center. She has argued that there were “moral and practical” reasons for banning same-sex marriage. And some lawmakers said she simply lacks the experience or legal ability to be a federal judge.
“She has practiced law for nine years. How many cases has she tried to verdict or judgment? Four. Has she been the lead attorney on any of those cases? No,” Sen. Dick Durbin (D-Ill.) said on the Senate floor. “That is the most scant, weakest legal resume imaginable for someone who’s seeking a lifetime appointment to the second-highest court of the land.”
Durbin certainly has a point when it comes to lack of experience for someone being appointed not just to the federal bench, but to a circuit court seat. Ideally, you’d want judges with broader experience (even as a litigator). The Trump administration’s emphasis on partisan loyalty in most of its judicial and executive branch nominees, to the exclusion of other factors — including character, experience and temperament — should not be a model for future presidents. That said, here’s something Democrats probably should stop complaining about: Nominees under the age of 40. Hear me out.
Circuit court judges sit on three-judge panels (or occasionally en banc). Consider Rushing, who is 37, on a panel with two other judges, perhaps in either their 50s or 60s and, more often than not, veterans of some lower court (state or federal). Would she be more or less persuasive than a more experienced judge on her panel? Would her minimal experience and audacity in taking a seat on the appellate court bench with such flimsy experience make her more or less respected, at least initially?
Perhaps. If Rushing is conscientious or apprehensive about embarrassing herself, she would actually hang back a bit, learn the ropes and watch her more experienced peers do their job. (Honestly, a 37-year-old with no judicial experience — even with clerkships for then-Judge Neil M. Gorsuch at the 10th Circuit, and for Justice Clarence Thomas at the Supreme Court — is going to have a really steep learning curve.)
In appointing novices, Republicans also are taking a risk the person is never going to change. If you are a 55-year-old judge with a lengthy track-record in conservative circles, oodles of published opinions and law review articles, as well as long-standing affiliations with conservative legal groups, you probably aren’t going to turn on a dime, adopt a philosophy at odds with decades of work and turn out to be a Justice William J. Brennan Jr., who was appointed by Republican President Dwight Eisenhower, before becoming a liberal lion on the court. If, however, you have scant accomplishments in your brief career, have not formed decades-long affiliations and have yet to undergo many possible life-changing experiences, you might actually change your mind about some things over decades. You might, in the company of colleagues, come to see the views of your youth as shallow or just plain wrong.
In sum, if Democrats are concerned about the Trump administration stacking the deck with hardened ideologues, they might consider more favorably the nominees who are the least set in their ways, the most amenable to learning from colleagues (at least initially) and the most concerned that they might not yet be quite up to the job they have been plucked for. In other words, better the humble novice than the defiant ideologue who’s spent her adult life safely ensconced in the right-leaning cocoon. At least you’ve got a fighting chance to see what the right wing dreads most of all — “growth” on the bench.