Senior district court judge Ann Aldrich and her law clerks call for an important type of diversity on the Supreme Court:
TO succeed Justice David Souter on the Supreme Court, President Obama should select a nominee with experience that no other sitting justice has — service as a trial judge on a federal district court. . . .
Why is this an issue? Most Supreme Court cases are initiated in district courts, and many end up back there when they are remanded for proceedings that are consistent with the high court’s ruling.
While the court’s opinions affect the day-to-day operations and decisions of the district courts, many of the justices lack the practical experience that is necessary for providing district courts with clear and workable directives.
I think they make a very good point. I also think it would be valuable if someone on the court had been a criminal defense attorney and litigator (as opposed to an appellate advocate). Appellate experience is important -- it's good seasoning for a potential Supreme Court justice -- but so is experiences with how the legal system operates at the ground level.
Seriously, though, I'm not sure I 100% agree (and I am a ground-level litigator). What's important at the ground level is that the Supremes articulate clear rules so that the rest of us can apply those rules to particular facts. If you're going to look outside the realm of appellate jurists, the place to go for people who know how to articulate rules well is academia.
Agree that since the court issues rulings that have to be applied by the lower courts it would be good for somebody on the court to have actually done it. It's like having a team of automotive engineers none of whom have ever actually driven a car.
Having one or two justices with some kind of experience in trial courts would be great.
And to expand on what Clem says, it's like having a team of auto engineers , who have never driven a car, worked in product development, quality, sales, marketing, service, manufacturing, finance or anything else, but are making decisions in all these arenas.
Academia is fine for what it is, but it ain't practice.
Appellate work is nice and clean – it’s all paper, not people and there is a vast difference between the two. If academics live in ivory towers, appellate practitioners share the same rarefied air. It is much different here on the ground, and having a member of SCOTUS who understands that would be of great benefit. While Souter had trial court experience, by the time he made it to SCOTUS he was far removed from that experience.
Burt:
I don't believe that Favre is right for SCOTUS.
Personally not much, but in the end a prosecutor's client is the government (municipal, state, federal) which has much more in common with a judge than a defense attorney whose actually represented individuals or companies.
I clerked on a court of appeals that was comprised of several judges and senior judges that had previously been on the trial bench. It definitely added a sense of pragmatism (maybe you disagree with what the judge did, but wasn't it clearly within his/her discretion to do it) vs. ivory tower viewpoint (we need a new trial because the judge got it wrong) when issues of a trial court's plain error, harmless error, abuse of discretion issues came up - the kind of "pure" trial issues. But since so few of the cases that get to the Supreme Court are of that nature, the value of trial bench experience there is mitigated, I think.
I also think trial bench experience adds nothing to the discusion when the Court strays into the social issues.
Because a basic purpose of our Constitution is to protect citizens from government abuse rather than the other way around?
Just a guess.
Or... if the argument is that a poorly constructed opinion causes trouble for those having to follow the opinion, a simpler solution would be for the Justices to hire clerks (or other staff) with such experience who can provide input into the wording of the decision, but not influence the actual decision.
- 2d Cir. Judge Sonia Sotomayor (S.D.N.Y. 1992-8)
- 9th Cir. Judge Kim Wardlaw (C.D. Cal. 1995-1998)
- 9th Cir. Judge Johnnie Rawlinson (D. Nev. 1998-2000)
So, Obama doesn't lack for options if he's inclined to take Judge Aldrich up on her recommendation. It seems quite likely that our next Justice will in fact have had some experience at the federal trial court level.
Well, we already have several justices with that experience, if you count working in an attorney general's office (Scalia, Thomas, Souter, Alito, Roberts) or being a special prosecutor (Breyer).
With all that experience arguing for the state, my inner libertarian says that it would be good to have someone who has taken the opposite position at least once in their career.
I'm less enthusiastic about criminal defense experience (or criminal prosecution experience). People attracted to that sort of practice don't tend to have the skill set one is looking for in a Supreme Court justice.
See e.g. Judge Gates faithful following of that terminally confused line of cases, finding that individuals captured in Afghanistan and held there by the U.S. have habeas rights in U.S. courts. The policy moves by the Court leading there were emotionally satifsying, no doubt, but how the hell is a trial court going to deal with a guy captured when troops responde to an ambush - a guy who wasn't mirandized, didn't get a lawyer within 72 hours, etc. See also the Uighurs. (You may get to see them soon, actually, in a neighborhood near you).
That said, I have to express some dismay at the recent pronouncements by some senators that the President necessarily should appoint someone other than a federal court of appeals judge to the Court in order to add to the diversity of practical experience on the court. Take Harry Reid: “It would be good if we could get a governor, (if) we could get a senator or a former senator. People with some real-life experiences for a while, rather than people who walk around in these black robes all the time.”
Do these senators really think that appellate judges have no "real-life experiences"? Appellate judges have a diversity of experience amongst their ranks; whether as academics, prosecutors, state court judges, private attorneys, etc. etc. etc. And we certainly don't lose anything by having people who have actually had to read briefs, weigh arguments, and write opinions on the Supreme Court.
As I understand it, none of those justices had much experience at the trial level (Alito I'm not sure about, but my recollection is that he focused on appellate work during his stint at the USAO). Having an insider's experience of the grand jury process, the mechanics of flipping defendants and working out deals, the realities of criminal discovery, and the exercise of prosecutorial discretion would provide some grounding for a criminal jurisprudence that tends to descend from a nebulous heaven of theory and reason. A criminal defense attorney would bring some of the same things to the table. I don't think a Court full of criminal practitioners is a good idea, but having someone with the nitty-gritty experience would be helpful (and my apologies to Justice Alito if he spent time in the trenches).
I'm less enthusiastic about criminal defense experience (or criminal prosecution experience). People attracted to that sort of practice don't tend to have the skill set one is looking for in a Supreme Court justice.
The backgrounds of, to give a few quick examples, Judges Colloton, Livingston, and Raggi would suggest that your view is a bit shortsighted.
I think everyone agrees that SCOTUS should have a supervisory role over the Federal Courts and are supposed to make the rules that run the Courts. So, yes, the Justices should have a good understanding of the workings of the lower courts.
It is a bit more controversial to assert that SCOTUS should have a supervisory role over society and should make the rules that run civilization. Therefore, the role of 'empathy' in judicial decision-making is more problematic.
Do these senators really think that appellate judges have no "real-life experiences"?
Does Harry Reid really think that being a Senator counts as "real world" experience?
Doers have more influence that professed doers, any day of the week! (It's good that you're able to comment like this, in between grading papers and working on law review articles, Jonathan.)
From this perspective I'd be OK with a lot of types of experience: criminal defense attorney, civil litigator (either side), district court judge. In some ways experience as a state trial court judge would be even better than a district court judge, since most of the law in this country is state law and most litigation is conducted at the state level. But it would be virtually impossible to find a state trial court judge of the caliber one wants in a Supreme Court Justice. Perhaps someone who spent a long time on a state trial court before being appointed to a state supreme court?
How about expanding the Supreme Court to fifteen members, and changing the law to allow the court to sit in nine-member panels; with en banc rehearing allowed under the same (or very slightly loosened) criteria as rehearings are now allowed. Any President proposing such a move would have to be extremely careful, to the point of designating in advance the justices that he would appoint if the legislation is passed and promising to keep roughly the same jurisprudential balance on the court. It would also be necessary to gather the gang of 14 and the Senate leadership to ensure that these six would be approved en bloc, and not be picked apart.
I think this change would allow the court to hear more cases, and would lessen the impact of a recusal on the court's ability to issue an opinion.
If this happened, I think the President would have some room to get creative. How's about this line-up:
Souter's replacement: Judge Kim Wardlaw
The new six: Judges Edith Jones, Kimba Wood, Marsha Berzon, Johnnie Rawlinson, and from the practicing bar, Patricia Millett and Corinne Ball (though, she's probably having _way_ too much fun right now to consider the Court). Well, it's just a little idle speculation.
I wonder why nobody ever thought of this before...
But once you accept the idea that Justices should take anything into account other than a strict interpretation of the law, like the lady in the old joke, you've compromised your principles, you're simply arguing over price.
Uh, that's why I said:
My political enthusiams tend towards the right (I have the calluses on my knuckles to prove it :-) ), so I wouldn't want the current President packing the court. But simply from the point of view of judicial administration, I think this idea has some merit.
I'd be in favor of this only if the non-lawyer were an esteemed historian.
Why?
Absolutely.
Hey there's brilliant guy available right now too. A highly respected author of umpteen books on economics and culture, writes in a common sensical direct fashion that cuts right through the bull, with a style and grace that could easily be understood by the masses of non-lawyer folk. Heck, being black, he's even a home run for diversity. If Obama really wants to prove he's "post-partisan, post-racial", he couldn't do much better than this:
Thomas Sowell
Spoken like a true member of the guild.
I don't know the answer to this, perhaps someone out there does - how many lawyers were there in the group that debated and wrote the damned Constitution anyway, and how many weren't?
I'll bet even the non-lawyers anong them knew one heck of a lot more about what they meant the words to say than the entire Critical Legal Studies crowd put together, too.
Absolutely clueless about the Fed R Evid -- something a trial judge should know. (I'm not talking about the occasional mis-step in the heat of trial. I'm talking about fundamentally not getting that Hearsay does not include statement's by a defendant in writing . . . which she would rule were covered by FRE 1002 -- the Best Evidence Rule.)
On appeal, she is the antithesis of Justice Souter in regards to questioning. Souter is among the most incisive. She, God bless her, is in the camp that says, rather ponderously, "Counsel what's your response to opposing counsel's argument in their brief that [fill in the blank]." Okay, sometimes that's useful. But every case?
Check out C-Span. Ninth Circuit arguments sometimes get air, and she sometimes is on the panel.
Michael Klarman it is!
How about someone with extensive corporate legal experience, preferably with a company in an industry under constant attack by governmental regulators, environmental exremists, every taxing authority, and tort liablilty billionaire-wannabe in the known universe, say - Exxon.
I think it would be highly beneficial to have at least one of the Supremes who understands just what it's like to live under all that constant legal bombardment, and how much dead weight it adds to the economy.
That has about as much chance of happening as having term limits for congresscritters so they would actually have to go out into the real world and live under all the garbage they pass.
Unfortunately the selection process will probably be more pragmatic. Like, “Have you paid your taxes?”
Nick
It hasn't been mentioned here, I don't think, but federal Court of Appeals judges (the chief judges, I think) have the discretion to sit as district court judges when they have the fancy. I know that Richard Posner did it a few times when he was Chief Judge of the 7th Circuit. I wonder how many of the leading Supreme Court candidates who are COA judges have this experience?
Jeff R. wrote: "Don't we still need someone with some serious business law experience? (Patents, Bankruptcy, Contracts, Antitrust, etc...) I seem to recall that need was brought up here during the last round o vacancies, and that neither Roberts or Alito brought much of that and it isn't as though the need was any less now..."
Roberts had a pretty significant commercial practice when he was a Supreme Court litigator. Stuff like employment law, antitrust, and IP. (I don't think he had much securities law experience.) I remember that some of his boosters--including Pres. Bush--pointed this out as a special qualification for the court. I haven't followed business cases closely enough in the past few years to see if Roberts' experience has translated into any leadership on business issues.
Oh, and Clarence Thomas has developed expertise in bankruptcy since he came to the court. He's said that he's always preferred business law to, say, civil rights law.
It would be difficult for the person picked, but that's what law clerks are for among other things. However, I don't expect it to ever happen. Just too much for the ABA and the press to complain about to nominate a non-lawyer.
However, I think it might be nice if the Supreme Court's diversity included someone whose background is that of an entrepreneur who has built a business and met payrolls and taken risks all while facing government regulation and taxation, an economist, and/or perhaps some other background.
Says the "Dog"
"Academia is fine for what it is, but it ain't practice."
In academia, it's spelled praxis.
How about CA Supreme Court Justice Carlos Moreno (a former federal district court judge)?
Nick"
Nick: We don't disagree on everything. Carlos was a fellow associate with me at my first law firm, right after he got out of the LA City Attorney's office. Stanford Law, and very level headed.
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