The Right Experience for a Supreme Court Justice:
I've been thinking about what kind of experience is helpful for a Supreme Court nominee. I have come up with the ideal experience the President should seek.
First, it would be very helpful for the candidate to have a science background, all the better a Ph.D. After she gets her Ph.D., she should spend a few years volunteering to help the poor to get a better sense of poverty in our society. She should then go to law school. After law school, she should clerk for a magistrate judge, a bankruptcy judge, a district court judge, a court of appeals judge, and a Supreme Court Justice. That way, the nominee will have a good sense of what it's like at all stages of the federal court system.
The candidate should then have considerable practice experience. In particular, the candidate should spend at least 5 years at a large law firm, followed by 5 years as a solo practitioner. That way she'll really understand legal practice. But that practice would be mostly civil law, and Supreme Court Justices also deal a lot with criminal law. The candidate should therefore get experience as a state prosecutor and then experience as a federal prosecutor. After that, the candidate should obtain experience in criminal defense, by spending a few years as public defender in the state system and a few years as a public defender in the federal system.
Of course, at this point the candidate won't have any Supreme Court experience, and that would be very helpful for a prospective Justice. So I would want the candidate to spend a few years as an Assistant at the SG's Office to understand Supreme Court practice. I think it would also be helpful for the candidate to get experience understanding the executive branch, so I want the candidate to then spend a few years at the Office of Legal Counsel and at least a year in the White House Counsel's office. Experience in Congress is very helpful, too, and a few years as counsel to the Senate Judiciary Committee would be an excellent way to get that.
Next the candidate needs prior judicial experience. The ideal candidate would have a few years of experience as a state trial judge, followed by a few years of experience as a state appellate judge. That way the judge understand law "in the trenches", and also understand the importance of state courts. Next, the candidate should get experience as a federal judge, too. Ideally, the candidate would be a federal trial judge for a few years and a federal court of appeals judge for a few years.
There's only one more stage at this point: The ideal candidate would have a sense of the political system. We don't need Justices who are pointy-headed beancounters; someone with political experience would be great. In particular, I'd like to see a candidate who served a few years in the state legislature, followed by a few years in the House of Representatives and a term or two in the Senate. It would also be great for the candidate to then have a few Presidential runs and perhaps end up on a national ticket. A term as President or even just VP would be ideal, but then that may be asking too much.
At this point the candidate would be about 147 years old, an much of her relevant experience would be outdated. The science Ph.D. would be about 120 years past, and the world of legal practice she experienced as as lawyer would be a century outdated. So I would want her to do it again, except this time super-quickly, like a month per job or something, to get a good refresher on things.
By then there will be a magic pill you can take that can make you any age you want, so we would give her that pill and make our 153 year old Justice a very youthful 32 years old. And that 32 year-old would be the perfect Supreme Court nominee.
First, it would be very helpful for the candidate to have a science background, all the better a Ph.D. After she gets her Ph.D., she should spend a few years volunteering to help the poor to get a better sense of poverty in our society. She should then go to law school. After law school, she should clerk for a magistrate judge, a bankruptcy judge, a district court judge, a court of appeals judge, and a Supreme Court Justice. That way, the nominee will have a good sense of what it's like at all stages of the federal court system.
The candidate should then have considerable practice experience. In particular, the candidate should spend at least 5 years at a large law firm, followed by 5 years as a solo practitioner. That way she'll really understand legal practice. But that practice would be mostly civil law, and Supreme Court Justices also deal a lot with criminal law. The candidate should therefore get experience as a state prosecutor and then experience as a federal prosecutor. After that, the candidate should obtain experience in criminal defense, by spending a few years as public defender in the state system and a few years as a public defender in the federal system.
Of course, at this point the candidate won't have any Supreme Court experience, and that would be very helpful for a prospective Justice. So I would want the candidate to spend a few years as an Assistant at the SG's Office to understand Supreme Court practice. I think it would also be helpful for the candidate to get experience understanding the executive branch, so I want the candidate to then spend a few years at the Office of Legal Counsel and at least a year in the White House Counsel's office. Experience in Congress is very helpful, too, and a few years as counsel to the Senate Judiciary Committee would be an excellent way to get that.
Next the candidate needs prior judicial experience. The ideal candidate would have a few years of experience as a state trial judge, followed by a few years of experience as a state appellate judge. That way the judge understand law "in the trenches", and also understand the importance of state courts. Next, the candidate should get experience as a federal judge, too. Ideally, the candidate would be a federal trial judge for a few years and a federal court of appeals judge for a few years.
There's only one more stage at this point: The ideal candidate would have a sense of the political system. We don't need Justices who are pointy-headed beancounters; someone with political experience would be great. In particular, I'd like to see a candidate who served a few years in the state legislature, followed by a few years in the House of Representatives and a term or two in the Senate. It would also be great for the candidate to then have a few Presidential runs and perhaps end up on a national ticket. A term as President or even just VP would be ideal, but then that may be asking too much.
At this point the candidate would be about 147 years old, an much of her relevant experience would be outdated. The science Ph.D. would be about 120 years past, and the world of legal practice she experienced as as lawyer would be a century outdated. So I would want her to do it again, except this time super-quickly, like a month per job or something, to get a good refresher on things.
By then there will be a magic pill you can take that can make you any age you want, so we would give her that pill and make our 153 year old Justice a very youthful 32 years old. And that 32 year-old would be the perfect Supreme Court nominee.
http://en.wikipedia.org/wiki/Carolyn_Kuhl
Except, er, she never did get any experience as a federal court of appeals judge.
But, though I know this an attempt at satire, in fact many of the experiences you mention would in fact be helpful to a justice. Also, I think many of the experiences would clearly overlap in terms of skill-set to a greater or lesser degree. Once someone has acquired basic skills, they would need less time in the later jobs. (Whether anyone would want to hire them to spend less time in the later jobs is obviously an entirely different question. Indeed, anyone evaluating such a candidate may very well question whether such applicant is willing to commit himself or herself to anything for very long...)
Obviously, your point is made. There is no "perfect" candidate for the Supreme Court. But, you don't want to take this point too far either. It is perfectly valid to want Supreme Court justices to bring different experiences and perspectives together, and maybe we don't want them to be too homogeneous. Just because we can't have one perfect justice, that doesn't mean that we wouldn't benefit from a Supreme Court where the justices, as a group, have a diversity of experiences that they bring to discussions.
I was with you on the science degree though.
...if the Supreme Court only consisted of a single judge. Instead, how about we divide that up into ninths, and suggest that each of the justices on the Court should have maybe one or two sections thereof?
S/he should also blog, and leave comment threads on, the better to grasp and implement the views of the blogosphere.
Why?
Most of what you have here are nice bullet points for things to look for and weigh, but "political" experience isn't a qualifier for a judge now, nor should it be, imo. If they have some, fine, but no need to weight this above anything else, if at all.
.
.
Better to know how they play the pick-and-roll, for the SC rec league games. And with Souter gone, they need some outside shooting.
Still, if you divide 147 by 9, each justice would only need about 16 years of experience, but in the aggregate they could have all or most of the experiences Orin describes. On a collegial court, varied backgrounds would be helpful.
That doesn't take years of experience, just ability to read English using dictionary definitions.
Who am I kidding - your method of finding a good justice is more likely to work.
Kerr's candidate would be wholly unacceptable to me. No international human rights experience. For shame, Kerr, for shame.
Let's have our own show: Judicial Idol!
Also, I think that the ideal candidate would take some time out and just walk the earth ... you know, walk the earth, meet people, get into adventures. Like Caine from Kung Fu.
Of course, after that 20 years I very much doubt she'd want another job almost as strenuous.
What this country needs more than ever before is a justice with a background in transactional practice. How about elevating someone from the Delaware bankruptcy courts? The bias in the legal world against transactional attorneys is long overdue for change...
I think if we had people with backgrounds in patent/IP and bankruptcy as our next 2 justices, we would be in great shape.
I also promise that if nominated, I will become the second Supreme Court justice in history to attend law school after being nominated!
And Mark in Colorado writes:
Those are my two favorites. The nominee should also have some experience with foreign legal systems (but not too much), should have some experience being poor, broke, addicted to drugs, and disabled.
And of course there's the always indispensable Maryland perspective on the law.
(1) Be a mammal.
(2) Fight all the time.
(3) Flip out and kill people.
I believe there was at one time a Mississippi perspective on certain issues of constitutional law, but those were resolved in Grant v. Lee, an 1865 decision.
Ninja Justice!!!
Lies, slander, and calumny. What the Supreme Court really needs is justices with a background in constitutioanl law. Tradition over diversity!
On a slightly more serious, the judge who I clerked shares your view, that the bench as a whole really needs more judges experienced in business and commercial matters. His belief was that too many judges had either been prosecutors or other positions where they had worked for the government such as agencies (he himself had been a prosecutor). I agree that having a Justice with that experience would be valuable, but I doubt with this particular President and in these particular times that the nominee will have much familiarity with business and commercial practice.
There, see how you like it.
:-)
What an inspired suggestion!
There could be a scenario in which Bybee would offer an almost perfect diversity nominee, who also would let Obama cover his political flank by "looking forward, not backward" regarding torture, unbridled executive war powers, etc. --
Bybee resigns from the bench and surrenders his law license. Obama pardons Bybee for any possible conspiracy charge and nominates him for SCOTUS.
Bybee even has the empathy patter down cold:
The only problem is that Bybee is the wrong gender.
As for the effect of background, I vaguely remember a case concerning cross-burning where Thomas apparently convinced several of his colleagues. Cross-burning is indeed symbolic speech, but any reasonable black person who grew up in the USA would read the message as, "Nigger, we're going to get you." I'm a first amendment absolutist, but direct threats are not and should not be protected.
That can be corrected.
Meets a lot of requirements:
NY legislature
Continental Congress
Military
Executive branch experience
State and SCOTUS appellate practice
Lack of any college degree, other than honorary, means common touch. Being an immigrant means sensitivity to immigrants. Is sometimes accused of having been a homosexual, which might help counter that he was a man, but as noted above, even that can be fixed.
Problems with the nomination, and possible solutions:
Never served as a judge: Experience in Philadelphia 1787 and in the NY ratifying convention could be considered a substitute. Writings often cited in SCOTUS decisions, and even quoted or at least paraphrased in McCulloch v. Maryland.
Lastly, there is a much under represented, and maligned, minority w/o any power in our government, and a Hamilton nomination would at least help in this regard. I refer to zombies, as of course a resurrected Hamilton would qualify under federal guidelines.
In short, Hamilton is probably the best we can find for Obama. I will look forward to the oral arguments:
Hamilton: "Counselor, you are a very brainy fellow, why don't you come to my chambers when we are done, I'd like to have you over for lunch. Brainzzzzz !"
And, according to Bybee, not torture even if done involuntarily.
Naturally, as gender is an artificial construct. As long as surgery is done painlessly, I see no problem. Only a bigot would object to gender reassignment. I hope you aren't arguing that such surgery is torture, as we would then need to stop it altogether.
Of course yours is a straw man argument, as Bybee never advocated what you say he did. If I am wrong, please give me a cite.
Who is supporting her while she earns her Ph.D. and in the early years of volunteering.
Would she marry and have children? If married, would her husband be able to profit by selling her influence or, at minimum, be able to send some earmark money her way? How about cattle futures? How about if she were a Republican?
If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.
Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.
We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.
And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.