Academic journal article Vanderbilt Law Review

Judicial Laterals

Academic journal article Vanderbilt Law Review

Judicial Laterals

Article excerpt


Lawyers already in practice at one law firm often move to another law firm. This type of move is referred to as "lateraling." A lawyer might choose to lateral for many of the reasons we often think people in general take new positions: better job security, better pay, better benefits, greater prestige, more interesting work, better future job prospects, more leisure time, and/or more predictable hours.1

In contrast to lawyers in private practice, we do not commonly associate judges with lateraling. But the fact is that, just as some judges are reassigned or promoted within a judicial system (for example, a federal district judge being elevated to the court of appeals), some judges occasionally engage in a practice to which we logically might refer as "judicial lateraling": they move from being a judge in one judicial system to being a judge in another. Since judges are usually (inexorably) tied to a particular jurisdiction,2 the reality is that a judicial lateral will move either from a state judiciary to the federal judiciary, or from the federal judiciary to a state judiciary. For example, William J. Brennan, Jr. was serving as an associate justice on the Supreme Court of New Jersey when President Dwight D. Eisenhower appointed him as an Associate Justice of the Supreme Court of the United States. As another example, Joseph Lamb Bodine was appointed as a United States district judge on the United States District Court for the District of New Jersey by President T. Woodrow Wilson in 1920; he served in that capacity until he resigned in 1929 to take a position as an associate justice on the Supreme Court of New Jersey.3

Just as judges lateral much like lawyers in private practice, we might expect that judges lateral for the same reasons. Indeed, as Judge Richard Posner has argued, judges value the same things everyone else does.4

The prevailing wisdom is that judges will lateral (if they have the opportunity) from a state judicial system to the federal judiciary.5 And, indeed, several factors bolster this view. Federal judges enjoy great job security (life tenure6), pay that generally exceeds the pay of state judges, assurance that their compensation will not be reduced,7 and attractive retirement benefits.8 Moreover, the federal judicial system is generally seen as more prestigious-along a variety of metrics9-than the various state judiciaries.

At the same time, there are reasons that one might expect at least some federal judges to be attracted to at least some positions in a state judiciary. First, the judicial system in which a judge works is only one measure of the hierarchical prestige she is thought to enjoy. In addition to their relative hierarchical positions-what we might call "intersystemic hierarchical positions"-judicial systems have their own internal hierarchies. These internal hierarchies resemble one another closely, with trial courts in the bottom tier, high courts in the top tier, and (for most jurisdictions today) intermediate appellate courts in the middle. Within this hierarchical structure that transcends judicial systems-what we might call "transsystemic hierarchy"-higher positions in the hierarchy are thought to be more prestigious than are lower positions. Thus, a federal district judge seeking greater prestige might be open to pursuing a position on a state appellate court or, perhaps especially, the state's high court.

Moreover, increased prestige in terms of transsystemic hierarchical position is not the only feature that might make such a lateral move potentially attractive. The appellate court positions that generally lie higher on the transsystemic judicial hierarchy offer not only prestige but also (at least for some) the promise of more interesting work, more predictable hours, and even more leisure time.10

On this logic, while we should generally expect to see far more laterals from the state judiciaries to the federal judiciary, we might expect to see a few jurists-like Justice Bodine-move from low levels of the federal judicial hierarchy to higher levels of the state judiciaries. …

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