Senators Debate Whether GCs Can Be Judges

Yale University's deputy general counsel, Susan Carney, will join the U.S. Court of Appeals for the 2nd Circuit, after the Senate put aside concerns about her lack of recent litigation work and voted today for her confirmation.

The vote of 71-28 came after a debate over whether Carney’s 13 years in Yale’s in-house counsel’s office, and her earlier time in private practice in Washington, gave her sufficient experience to be a federal judge. In-house counsel make up a small minority of nominees for the federal bench, and Carney waited almost a full year for the Senate to act on her nomination.

Carney has never argued before a federal appellate court, though she has worked on appellate briefs and has helped to oversee litigation at Yale. She was a partner in Washington at two law firms for four years in the 1980s and also worked in-house at the Peace Corps and as of counsel at the labor firm Bredhoff & Kaiser.

Sen. Richard Blumenthal (D-Conn.) said during a debate leading up to the vote that Carney has “truly impressive credentials.” He cited her work at Yale on international transactions, intellectual property and other commercial matters.

“Ms. Carney’s time at Yale has exposed her to a broad array, a diverse swath of federal law,” Blumenthal said.

Sen. Charles Grassley (R-Iowa), the top Republican on the Senate Judiciary Committee, voted for Carney but did so, he said, reluctantly. He said her qualification for the New York-based appeals court “remains somewhat of a mystery.”

“According to her questionnaire, Ms. Carney appeared in court occasionally over the course of her career, and that word occasionally is her own,” Grassley said. “She has never tried any case to verdict, judgment or final decision, and absent, she explains by saying that she ‘spent her law career as an appellate lawyer and in-house counsel.’”

Grassley added later, “This nominee does not have the concrete judicial experience I favor.”

The American Bar Association committee that rates judicial nominees called Carney qualified, its middle rating, by a non-unanimous “substantial majority.” A minority of the committee called her not qualified. The committee doesn't give the reasons behind its ratings.

Though he didn’t speak today, Sen. Jeff Sessions (R-Ala.) questioned Carney’s lack of courtroom experience during her confirmation hearing. “If you want to be a judge, you normally would like to see one in action,” Sessions said then.

Democrats came to Carney’s defense during today’s debate. Sen. Patrick Leahy (D-Vt.), the chairman of the Judiciary Committee, accused Republicans of having a double standard by criticizing nominees when they do have significant litigation experience, such as the plaintiffs-side work of trial lawyers. Sen. Joseph Lieberman (D-Conn.) said that with Yale’s $2 billion annual operating budget and 12,000 employees, “There was a lot of legal work to do there.”

National Law Journal photo by Diego M. Radzinschi.

Comments

[Mark D Olson]

I disagree with Public Lawyer - many appeals turn on evidentiary issues and how the trial court managed a case. Trial lawyers learn their trade via (forgive me for this) trial and error - with much of the latter when you first start.

In-house counsel simply do not have the exposure to trial court decision making - it is something you can learn a little about by watching, but when you have your first big case with tough issues, you learn very quickly the level of effort and concentration and speed on feet required to manage a hotly contested case first chair at trial. It is difficult to understand how someone with Zero trial work can be placed on a federal appellate bench. My vote would have been No.

[public lawyer]

The senators are carefully or strategically ignoring the difference between district court judgeships, which of course require trial courtroom experience, and appellate court judgeships, which require chiefly legal reasoning and excellent writing skills. One may gain appropriate experience to become a wonderful appellate judge in many ways. Having tried a case to a jury can be helpful and good, but it is neither necessary nor sufficient for being a great appellate judge.

[Lynn Hecht Schafran]

How fortunate for Judge Harvie Wilkerson that when he was nominated to the 4th Circuit many years ago no Senators were concerned about the fact that he had never written a brief, argued a case, etc., etc. He had, however, clerked on the Supreme Court and worked in the Justice Department, and apparently that was enough.

Lynn Hecht Schafran

[anon]

I'm just glad you didn't report that Chatigny withdrew his nomination, an unsupported claim the Connecticut press, even its senior, supposedly best reporters, won't stop reporting as if it is fact.

[Jill Smith]

Wasn't Jose Cabranes also Yale's in-house counsel before becoming a judge?