Reasons to Look Outside the Judiciary for Supreme Court Nominees:
In the Chicago Tribune, lawprof Tim O'Neill makes the case against nominating another court of appeals judge to the Supreme Court. Oddly, though, O'Neill doesn't seem to have an affirmative argument for what nominating someone without prior judicial experience would actually add. He suggests that the diversity of experience would add something, but I don't think he says what that is.
We have blogged about this issue before, but I wanted to add a few thoughts anyway. In my view, the argument that a President should nominate someone to the Supreme Court who lacks experience in the court of appeals to ensure "diversity of experience" doesn't make a lot of sense. If typical Supreme Court nominees are 50 years old, and have spent 5-10 years on the appellate bench, they will have spent most of their lives doing something beyond filling up the Federal Reporter. The will have been practicing lawyers, public interest advocates, government officials, legislative staffers, academics, and the like.
True, few federal judges have experience in public office, a lack of experience that O'Neill finds troublesome. But then I'm not sure how that's relevant. Take the case of former legislators, who I would think are the most common type of former public officeholders who are often considered for judgeships. What exactly is it that legislators do that judges need to know? What does that experience teach that jurists who have not been elected to public office suffer from not knowing? Given the realities of work in Congress or state legislatures, I'm not sure.
Perhaps the argument is that those who want former legislators to become judges really don't want "diversity of experience," but rather like it when judges act like legislators. That is, maybe a former legislator is more likely to legislate from the bench -- an overused term, but here I think an accurate one -- and some think that's a good thing. Perhaps. But if so, I think that argument should be made directly, not hidden behind an argument for "diversity."
None of this means that there are no arguments against nominating court of appeals judges to the Supreme Court. I find one argument pretty strong: The pool of appellate judges is just too small.
Here's my thinking. A Presidential term might see only about 35 confirmations of appellate judges. Of that group, fewer than ten are likely to have the intelligence, personality, and work ethic to be likely Supreme Court material. (Indeed, it's harder to get top court of appeals nominees confirmed if it looks like they might be Supreme Court material down the road.) If you cross out the judges who are too old, are unconfirmable, or who don't want the job, the group gets smaller still. As a result, if a President confines himself to sitting judges, the "short list" starts off as very short indeed. By looking outside the court of appeals for nominees, the President can vastly expand the pool of possible candidates and likely find someone who better matches his idea of an ideal candidate. I think that's the best reason to look beyond the court of appeals, not the diversity of experience of someone who has no experience in the federal judiciary.
We have blogged about this issue before, but I wanted to add a few thoughts anyway. In my view, the argument that a President should nominate someone to the Supreme Court who lacks experience in the court of appeals to ensure "diversity of experience" doesn't make a lot of sense. If typical Supreme Court nominees are 50 years old, and have spent 5-10 years on the appellate bench, they will have spent most of their lives doing something beyond filling up the Federal Reporter. The will have been practicing lawyers, public interest advocates, government officials, legislative staffers, academics, and the like.
True, few federal judges have experience in public office, a lack of experience that O'Neill finds troublesome. But then I'm not sure how that's relevant. Take the case of former legislators, who I would think are the most common type of former public officeholders who are often considered for judgeships. What exactly is it that legislators do that judges need to know? What does that experience teach that jurists who have not been elected to public office suffer from not knowing? Given the realities of work in Congress or state legislatures, I'm not sure.
Perhaps the argument is that those who want former legislators to become judges really don't want "diversity of experience," but rather like it when judges act like legislators. That is, maybe a former legislator is more likely to legislate from the bench -- an overused term, but here I think an accurate one -- and some think that's a good thing. Perhaps. But if so, I think that argument should be made directly, not hidden behind an argument for "diversity."
None of this means that there are no arguments against nominating court of appeals judges to the Supreme Court. I find one argument pretty strong: The pool of appellate judges is just too small.
Here's my thinking. A Presidential term might see only about 35 confirmations of appellate judges. Of that group, fewer than ten are likely to have the intelligence, personality, and work ethic to be likely Supreme Court material. (Indeed, it's harder to get top court of appeals nominees confirmed if it looks like they might be Supreme Court material down the road.) If you cross out the judges who are too old, are unconfirmable, or who don't want the job, the group gets smaller still. As a result, if a President confines himself to sitting judges, the "short list" starts off as very short indeed. By looking outside the court of appeals for nominees, the President can vastly expand the pool of possible candidates and likely find someone who better matches his idea of an ideal candidate. I think that's the best reason to look beyond the court of appeals, not the diversity of experience of someone who has no experience in the federal judiciary.
What it takes (as a practical matter) to get legislation passed including the day to day challenges and reality of legislative work that end up reflected in the legislative workproduct. It may not be the dispositive qualification, but it sure will change how a judge views the statutes she is called on to judge. Whether that is for the better, however measured, who knows?
1. A sense of compromise. I think academics tend to be enamored of theories, while people who've been in the political arena tend to recognize what's practical and what's not. This isn't always true, of course; it'd be easy to find counter-examples on both sides. But I think it's often enough true that I'd at least expand the pool of candidates.
2. Experience in communicating to the public at large rather than the more limited legal community. At the SCOTUS level, it's certainly true that we want good legal scholarship. But SCOTUS opinions need to persuade as well as to determine. They ought to be written so that the public has some grasp of both the issues and the reasoning. All of us lawyers tend to write as if we were our only audience. At some point it becomes scholastic.
I find the requirement that a DA be a lawyer just as repulsive, any member of the polity should be able to stand for election and be judged on their merit without having to run another group's vetting process first.
Whether for good or ill, "intelligence, personality, and work ethic" are not required to be nominated or to be confirmed as a Justice.
You know the old saying: to a hammer, every problem looks like a nail? (I know, I'm butchering the saying, whatever it is).
Perhaps, to a lifelong judge/academic, every problem is a judicial problem that requires judicial input. To a legislator cum judge, perhaps some problems look like problems for the legislature to solve, and others look like problems for the judiciary to solve.
Note that this is exactly the opposite of what you postulate. You think a legislator cum judge is more likley to legislate from the bench, I wonder if a legislator cum judge is more likely to leave some issues to the legislature. I have no idea which is more likely. I suspect yours.
Sk
So, my prediction: around age 40 (definitely under 50), very short tenure (if any) on a federal bench so as to minimize any paper trail.
Thomas Perrelli is one possible, Elena Kagan another.
Thining of other before yourself... Gof, but bad.
It's fashionable to criticize the Supreme Court as being overly academic and "out of touch with the people." If you buy that argument, then start to speculate about how to "fix" the "problem," quasi-lay Justices is probably the most natural thing to pop into your head next.
By that point, your column for the newspaper has just about written itself. All you need is an opening paragraph, which can either be a throat-clearing anecdote about a 19th-C judicial nomination or a bunch of meaningless statistics...
I think the current court disproves that notion.
I don't know much about the backgrounds of the 6th Circuit judges...
Orin,
Wouldn't serving as a legislator tell you something about how laws are made that would be useful when you are later called upon to decide what the laws mean? At a very minimum, a former legislator would have a more informed view of the value of legislative history than someone who has never been anything but an academic or a judge.
I think if, instead of elevating D.C. Circuit judges, Obama elevated some judges from the most overworked circuits in the country (e.g. the 11th, 5th, and 9th) we'd see a change in cert. grant patterns to focus on recurring issues in the circuit like sentencing and immigration.
Any of these could bring experience to an appellate position. Saying that the guys who have been making up the rules are the only ones who should advance to a higher level of making up the rules doesn't make much sense to me.
Isn't the best way to learn how laws are made to work as a legislative staffer? You get to see the entire process without all the fundraising and campaigning. But somehow time spend as a legislative staffer isn't counted as diversity of experience, while time as a legislator apparently is.
MarkField,
I assume you're a fan of Justice O'Connor? She seems to be what you have in mind: Former legislator who was also ready to compromise.
Please no more O'Connor-style 11-part balancing tests. Ugh.
The last Justice to have legislative experience was Justice O'Connor, who served in the Arizona State Senate. Of the current members of the Court, the only one who has been a trial judge was David Souter, who served on the New Hampshire Superior Court.
Why do you assume that a President would only want to nominate someone who he or she personally nominated to the appeals court? Even if true, Presidents can serve more than one term, and may previously have been a governor and thus have state appellate judges to choose from.
However we are seeing a shift in how people are chosen for the Supreme Court. Like other jobs such as law professor, or university dean, Supreme Court appointments are becoming similarly "professionalized" with a more defined career path.
The formula is becoming (prestigious education) + (clerkship) + (prestigious government post such as OLC) + (possible academic work) + (possible time in private practice) + (some time as federal appellate judge). Mileage may vary for a given nominee (Souter was a state judge, for example), but a Hugo Black would be almost inconceivable today.
The new career path from which they are chosen, helps identify highly-credentialed people who are politically reliable and stable, with a taste and demonstrated capacity for the kind of political legal work the Supreme Court does.
Also, this kind of career path, makes it less likely that someone will veer away from it, perhaps in their 30s or 40s, to run for Congress, then turn around and become interested in the kinds of pursuits that could make them a candidate for an appellate judgeship and in turn the Supreme Court. Or for those who did, they would be at a disadvantage to those who stuck to the beaten path.
Yes and no. The legislator is the one calling the shots and running the show and maybe understand the "why" better than the staffers if not the details of the "how." Staffers in the trenches may learn a little or a lot, depedning on their responsibilities. That said, I don't see any good reason not to treat experience as a legislative staffer as "diverse" in the sense that Prof. O'Neill is talking about.
Right now the judges offer their opinions on how legislative material is used and manipulated and how statutes are written. However, they don't know more about that than any other average educated person and so are filling their judicial opinions with a lot of anecdotal and personal opinion.
I do not know if the appointment of a legislator would engender more or less reverence for the statutory language, but I think it would be a valuable perspective to have given the relatively uninformed yet important debates in which the Court currently engages.
One can make the same argument, by the way, in favor of former executive officials in reference to how the Court expounds on how those officials perform their jobs.
Yes, a better way to look at it might be: There are about 180 authorized federal judgeships, about 30-40 of which turn over during each 4-year administration. Over the past 30 years, the longest any party has been out of power has been 12 years, so there is a fairly good chance that at 1/2 to 2/3 of sitting federal judges will have been nominated by the President's party. Screening for age and confirmability will take that number down, but we're talking about the President getting 2 or maybe 3 slots at most, so the short list can be fairly short. In addition, the pool of CTA judges has a disproportionate share of SCOTUS-qualified individuals compared to, well, any other pool of individuals I can think of other than already-sitting Supreme Court Justices.
Well, it's all relative, isn't it? From a strictly ideological perspective, I'd prefer Douglas or Marshall, of course. OTOH, I certainly do prefer her to Rehnquist or Alito or Roberts. So yeah, in that sense I'm a fan.
I'll add that compromise isn't everything, nor is harmony on the Court (another thing legislators are probably better at than academics). Clarity and certainty are important judicial values as well.
Wrong!!!
That sense of compromise is how you get incomprehensible decisions like the UM diversity case where a politician turned justice, decided that using "diversity" as a factor in admissions is constitutional now, but in 25 years in won't be. Huh?
As I tried to indicate above, I don't mean compromise to be the enemy of clarity, nor to "trump" clarity. I think both are possible.
Ultimately, what Justices want to do is get at least 4 others to go along with them. Being an asshole to your fellows isn't likely to get you there, regardless of how brilliant you think your opinion is (and yes, that IS a pointed comment about at least one Justice). Having some experience in cooperating with others seems to me a useful skill on the Court.
I would almost prefer that trials be restructured so that at the end of the closing arguments the jurors are simply polled in open court, if they aren't convinced at that moment the trial is over with the defendant winning.
Nick
That said, regarding Sk's conjecture that a judge with legislative experience may be less likely to legislate from the bench, I know of at least one scholar of law who thinks that Justice Jackson's jurisprudence was tempered into a greater respect for separation of powers by his time as Roosevelt's attorney general. I don't know if she's right about him or not, but it seems a reasonable hypothesis, and it seems experience as a conscientious legislator might have the same effect.
I fear I'm not understanding this - if you stick a brilliant non lawyer on the bench, and the lawyers start arguing about the fine points of hearsay exceptions, on what is the judge to base his ruling, unless you send him off for a few years of legal training :-)
The crooks and scoundrels aren't properly represented.
It would be up to the lawyers to make their cases in such a way that an intelligent layman could judge them. If they couldn't, maybe the law in question is a little too arcane for a country of non-lawyers. Laymen on the SCOTUS would be an excellent way to keep the law from disappearing up its own arse.
I agree, we need some non-lawyers on the bench, we've gone way too far in the direction of government of, by and for lawyers.
I'm just afraid that we passed the point of no return some time ago.
How about small business owners or cops on the Supreme Court. They have to live with the laws Congress passes and the Supreme Court's rather fine distinctions on what the 4th and 5th Amendments require.
Could a legislator provide relevant information in the "do you look at legislative history debate"? Seems about the only area I can think of. But, if that person was to make any type of valuable contribution, the person would have to be neutral in evaluating if leglislative history is important, then go from there.
The thing I don't like about TerrencePhillip's equation (which seems accurate) is that anybody who takes a step off that track to do something meaningful might not get considered. But, the meaningful thing might provide just as important as a credential as anything else that could be done.
Finally, this required resume (that Terrence Phillips mentioned) is a victory for the originalism/conservative movement. People who have the proper resume are more likely to be originalist/conservative/federalist society types. Once that type of resume became accepted as proper(or even necessary), it made the pool of possiblities similar to the type of people that movement would like anyways. Not sure if this was intentional, but it seems like it has cut in their favor.
n.b. that the original comment was including district judges.
There are a lot of gray areas of the law. Someone who knows the precedents can be guided by them, whether they personally agree or not. Someone who doesn't know the precedents is going to decide based on what? It seems all they can do is do what they think is right, and so every judge's decisions will be different.
Better, I think, to have judges, as far as humanly possible, implement a consistent, communal view of the law. If society doesn't like their interpretation, change the law.
LOL... The Supreme Court was setup to be more like a Permanant Jury on all things Constitutional.. There are no required specifications for a Supreme Court Justice. It's assumed the person is competent to evaluate the information, and here all arguments before making a decision.
As it currently sits, the Justices have most of their work done for them. Interns research the information for them, they review it, and have their assistant issue a statement. Who is really the judge in such a case.
I think it would be interesting to create a mock case.. One relating to the Constitution, preferably unique, and compare the argument between a law professional, &a layman. Depending on the subjects, you might find the law professional is restricted by his education. But again, could be an interesting experiment.
For example:
No experience as appellate judge:
Rehnquist
Douglas
Brandeis
Warren
Jackson
Frankfurter
Black
Experience as appellate judge
Burger
O'Connor
Cardozo
Stevens
Brennan
Kennedy
There are judges with no experience who have turned out great and some who turned out badly. Some of our lesser lights had distinguished, or at least long, careers.
Nor do I think that the judge's background predicts whether he will "legislate from the bench."
I believe that as the government has become more intrusive, and as the Court has insinuated itself into ever more areas of life, these appointments have takien on more importance. So presidents have sought predictability and have looked as sitting Federal appellate judges as people whose votes are most predictable. Presidents who have not employed this tactic have been burned-- look at Souter and O'Connor.
Certainly, we never again will see a phenomenon of a conservative Republican appointing a liberal like Cardozo because of his distinction (or a Democrat appointing a distinguished conservative). And we certainly will never see an appointment like Salmon Chase where the president put the guy on the court to get him out of the way.
The people who the cops arrest also have to live with these fine distinctions. And the customers of the small businesses, and those who work for small business owners have to live with the courts' decisions as well.
The poster here is Kazinski, the judge is Kozinski. They're different. Trust me on this one.
FINALLY we're getting somewhere: the more undistinguished, the less versed in legal analysis, the better.
I don't have a problem with SCOTUS appointees having prior appellate judge experience. I agree that that tends to be less important than what they did in their careers before becoming appellate judges.
My problem is with a SCOTUS, or a federal judiciary, that's over-populated with lawyers who've only been academics or in government service. They not only are generally missing "real world" experience that comes from having real-world legal problems for real (non-government) clients, they tend to be absolutely convinced that they're about 200% smarter than they actually are. This tends to be true, in my experience, of such lawyers without respect to their location on the political spectrum; and I'm generalizing (there are indeed conspicuous counter-examples among both academics and government/public service lawyers). But real life as enforced upon those in private practice — be it a civil or criminal litigation practice, or something like tax or securities law — tends more to foster a healthy degree of humility and, well, realism.
Doctorates in math physics and compsci would be great, so long as they were also lawyers. There are any number of legal scholars and patent attorneys who fit the bill.
Another good thing about patent attorneys is that they are much more likely to have some experience with laws in foreign countries. I had to deal with foreign-filing issues with my foreign correspondents in many countries. Not that foreign laws should have any precidental value in the US courts, but such experience would help broaden the candidate's background.
I'm all in favor of taking any law which the justices cannot figure out the meaning of by reading it, to be declared null, and let the "experienced legislators" try again. If it is so complicated, and so much compromise is needed, that the substance is probably political blather rather than a proper use of the law.
Meanwhile, news stories demonstrating the contrary appear almost daily. The Los Angeles County Sheriff's Department, largest in the nation, has just admitted, after it was exposed, that it had been recruiting people with criminal records to serve as deputies. And reports of internal police whitewashes, the police code of silence, testilying, police beatings, illegal searches and seizures, failures to advise arrestees of their rights, coercive interrogations, suppression of exculpatory evidence and so on continue unabated.
I don't know if your other points are OK, but this one isn't. Chase was already "out of the way" when Lincoln appointed him. Lincoln had already won a second term when Taney died and knew that Chase would/could never become president. He just thought Chase (a brilliant lawyer with loads of experience) was the best man for the job. Odd way to pick a Supreme Court justice, isn't it?
I've often wondered why they don't let non-doctors perform surgery. Where I live, they even limit plumbing to plumbers.
Oh, in both cases that's to protect customers from the instability that cut-throat competition within the field would inflict on society - for instance, uncertain profits.
To expand on that, it's basically that I think the positive elements of Jacksonian democracy would serve people just as well in the judiciary as they did in the legislature and executive branches.
Also, when you get down to it, I disagree with you about precedent. You said,
I disagree. Really, I don't like stare decisis and object to idea of legal precedents. In my opinion a good ruling is one that would be right in a legal "tabula rasa" situation: it takes the situational facts and it takes the statutory or constitutional text and combines them to reach a result that makes sense in a vacuum, and it provides reasons for that result that are convincing in that vacuum. The only reason I approve of for citing a precedent is because this time starting from scratch the same reasoning and result were reached.
If your answer to the question "Suppose this were the first case to be heard by a court in all of human history. Text and facts, what should the outcome be?" isn't the same as the answer to the question, "Taking into account precedents, the text, and facts, what should the outcome be?", then it's the answer to the first question, not the second question, that should determine the court's ruling. I believe it is absolutely inexcusable for a court to declare "It is now too late to question the correctness of this construction." or a judge to issue a ruling that differs from the ruling they'd have given in a case of first impression. Such behavior is, however, the standard practice. I think that appointing people who haven't been exposed to a legal education, and thus conditioned to accept, approve of, and defend that objectionable status quo, is the best way to get rid of it.
Not a fan of Taft, I'm guessing.
What, the customers of a small business can't shop elsewhere? Their employees can't change jobs? (There was a law passed to that effect in Atlas Shrugged, but that's just fiction.)
A state constitution says 'The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired'. State law says 'Universities are governed by a state published administrative code', and the code for StateU says 'no guns on campus'.
Student Adam carries concealed on campus. A week before graduation, he trips, hits his head, and is unconscious. The EMTs find his gun. He is expelled, sues, and Judge Smith considers conflicting laws de novo and decides in favor of Adam, ordering StateU to give him his diploma.
Later, the same set of facts, but involving student Alice, ends up in front of Judge Jones. He decides, de novo again, that Alice can kiss her degree goodbye.
It seems like Adam and Alice and Bob and Betty have no way to know what conduct is allowed and what is prohibited - it will depend on whether they get Judge Smith or Judge Jones.
Do you think this is how things should work, or am I misunderstanding what you propose?
See, in your hypothetical, one of the judges is right and one is wrong. Let's say it's that Judge Smith is right and Judge Jones is wrong. Under what I propose, if the order is switched and they give the same de-novo rulings, Judge Smith is still right and Judge Jones is still wrong. Under the system we have right now, though, in your hypothetical Judge Smith can be right and Judge Jones wrong, but if the order's switched then Judge Jones is still wrong but now Judge Smith is also "wrong". That the right answer can become wrong because it's preceded by a wrong answer that changed what the right answer is strikes me as very perverse. The right answer's ultimately a matter of discoverable objective fact, the way it is with everything.
Hey, Emanuel isn't the only devious thinker around!
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