More on Supreme Court Experience:
My earlier post "The Right Experience for a Supreme Court Justice" drew some interesting comments, and I wanted to follow up. The point of the post was that any person can only have so many experiences. Although it would be nice if inidviduals had a wide range of experiences, life is short and experience can be a bit of a zero-sum game. Asking for a judge with experience A may mean getting a judge without experience B.
A few commenters weighed in with the point that what matters is experience on the Court as a whole, not for each Justice, and that my post downplayed this point. Here's commenter Prosecutorial Indiscretion:
At the same time, there are two limitations on this that I think are worth noting. First, Supreme Court openings generally occur one at a time. A President normally will not know if there will be any more vacancies in his Term. Creating a group with diverse experiences can work if you are selecting the entire group at once, like college admissions officers creating an entering class with two shortstops, four members of the math club, and two oboe players. But it's a lot harder when a President has only one pick.
Second, I think it's worth questioning the ideal story of how diverse experiences make a difference at the Supreme Court level. For example, Justice Souter had several years of experience as a state trial judge. Off the top of my head, though, I can't tell how this impacted his work. It's not like I ever expected Justice Souter to have an unusual influence or to bring unusual insights in decisions that involved state court trial proceedings. Justice Blackmun was a math major, but I don't see his opinions in technical or mathematical areas any better than any other Justice. Justice Breyer has the most legislative experience, having worked in the Senate; I don't think his statutory opinions are particularly different than those of any other non-textualist judge.
In short, it might be that diverse experience leads to better insights, and that candidates with a particular past will be better at certain cases or have a deeper understanding than others. But there's considerable evidence that this often isn't the case, which should temper the focus on particular experiences at least somewhat.
A few commenters weighed in with the point that what matters is experience on the Court as a whole, not for each Justice, and that my post downplayed this point. Here's commenter Prosecutorial Indiscretion:
Your point is well-taken. That said, wanting the Court to involve a breadth of experience does not mean every justice has to have a ridiculously broad background. It just means that, e.g., having one justice who's spent time in the trenches would be nice, so that the Court as a whole would have the benefit of that perspective and experience. Nine justices with antitrust experience would be a bit pointless; one or two seems pretty useful.On one hand, it's hard to disagree with this. I think everyone acknowledges that in a perfect world, you would want different Justices to have different experiences. In theory, the Justices with more experience could have an outsized-role in cases for which their experience was relevant, leading to decisionmaking that was better informed. All to the good.
At the same time, there are two limitations on this that I think are worth noting. First, Supreme Court openings generally occur one at a time. A President normally will not know if there will be any more vacancies in his Term. Creating a group with diverse experiences can work if you are selecting the entire group at once, like college admissions officers creating an entering class with two shortstops, four members of the math club, and two oboe players. But it's a lot harder when a President has only one pick.
Second, I think it's worth questioning the ideal story of how diverse experiences make a difference at the Supreme Court level. For example, Justice Souter had several years of experience as a state trial judge. Off the top of my head, though, I can't tell how this impacted his work. It's not like I ever expected Justice Souter to have an unusual influence or to bring unusual insights in decisions that involved state court trial proceedings. Justice Blackmun was a math major, but I don't see his opinions in technical or mathematical areas any better than any other Justice. Justice Breyer has the most legislative experience, having worked in the Senate; I don't think his statutory opinions are particularly different than those of any other non-textualist judge.
In short, it might be that diverse experience leads to better insights, and that candidates with a particular past will be better at certain cases or have a deeper understanding than others. But there's considerable evidence that this often isn't the case, which should temper the focus on particular experiences at least somewhat.
Blackmun was skilled at noting that three is a square root of nine, and therefore the U.S. Consitution forbade restrictions on abortions within the first of the three trimesters of a nine-month pregnancy.
I've often wondered how Roe would have come out if the human gestation period were a prime number of months.
Would one ever expect much carryover from a college major in math?
How about the value of trial experience over appellate endeavors as a judge or an advocate?
Is this any harder than assembling, say, a team of engineers or a team of programmers or a faculty? In the "real world" vacancies occur one at a time, and sometimes you look for someone who will balance out the team when hiring. Every hiring manager does this to some degree.
e.g. if the Math department looks around and sees that they don't have any topologists, perhaps that's what they should look for the next time a faculty spot shows up.
Are you claiming that your department hires without regard to area of specialization? Ever?
If they can't find someone who's had experience being me, then at least they should find someone who's had experience being someone very, very much like me. Or who'd agree with me completely, pretty much all the time--sure, I'd settle for that...
I agree completely. Zombie Thurgood Marshall should be nominated.
(P.S. Thurgood Marshall is my favorite justice. I'll always vote for Zombie Thurgood Marshall.)
First off, yes, it's obviously very different. Teams of engineers and faculties necessarily specialize: You have a team largely because no one person is enough of an expert, so you distribute the expertise based on the needs of the job. If you need a tax professor, you need a tax professor. Doing the job requires specialization.
That's not the case with the Supreme Court: All 9 are generalists. Every Justice votes in every case at every stage: No one's vote is counted more than any other. And no one knows who will write what until the tentative votes are in.
Now, you could imagine a new version of Article III that had a specialized Supreme Court, and would make the court operate more like a specialized team of engineers or a faculty. But that's not the world we're in.
One reason Thurgood Marshall was valuable to the court because he understood how any rule that depended on prosecutors unreviewable good faith was problematic. He also understood that all too many judges don't give the claims of criminal defendants the attention they deserve, and that some judges, prosecutors and juries were downright crooked. His experience before openly racist and otherwise unfair trial courts made him a champion of appellate courts taking a close look at trial proceedings.
In the last tread, someone said that law professors were good at making clear rules. All I can say is, “Oh for the love of God and all that is decent, no!!!!!!!” The last thing law professors are good at is dealing with the real world. I've talked to top law professors about issues in my cases. They are very helpful in understanding the underlying theories (and generally very generous with their time), but they are frequently clueless as to how their theories work on the ground.
In reality, it's good to have a bench with a diversity of backgrounds. We'll never get perfect diversity, but a president should keep the factor in mind when picking nominees.
Uh_Clem actually made a very valid critique of your point that the "one justice at a time" limitation prevents the assemblage of an experience-diverse court.
In rebutting him, you pretended as if you'd never made the argument that experience-diverse (different in degree only from "specialist") justices would be difficult to assemble, instead suddenly asserting that all 9 justices are "generalists" (certainly not the argument Uh_Clem was critiquing).
Uh_Clem's comment isn't "puzzling," but your response to it certainly is. So what that we don't have "specialists" on the Supreme Court? Uh_Clem's point that we can assemble a diverse group in a one-at-a-time fashion equally applies to a court of "generalists" with varied experiences. To use your own analogy, the shortstops, math club members and oboe players need not all be admitted at the same time, especially if they're enrolling for life.
As for your second point that diverse experience doesn't lead to better insights, it would be nice if the "considerable evidence" you referred to included more than your bald assertion that "off the top of your head" you haven't found any particular justice's opinion to be any better due to his/her unique experiences.
Someone with political experience; a woman; a minority; a trial judge or someone with substantial trial experience; a shortstop; an oboe player.
I think Judge Sotomayor fits many categories. Gov. Granholm would too. I suppose Derek Jeter fits two of them.
Zombie Thurgood Marshall's lust for brains would come through at oral argument and at conference, and would have the effect of driving smart people away from trying cases or serving on the bench.
Either that or people would just carry torches with them.
I think this is an option that needs to be explored more thoroughly. Perhaps Jeff Rosen could get the ball rolling. He wouldn't even need to talk to zombie clerks as many of the people who clerked while Thurgood Marshall was alive are still alive themselves.
1.) He'll probably appoint someone with all the "right" credentials (sitting federal appeals judge with top law school, short stint in private practice, lots of non-profit or government work, yadda yadda). The Mandarin Class will approve, because the nominee's credentials will be the same as their own.
2.) The President might repay a debt by appointing a hack from one of the big city machines that put him over the top in November (perhaps Philly, Miami or Richmond). The nominee might have middling paper credentials but will be a member of one or more minority groups -- intimidating the Mandarin Class into silence.
The second option would be more fun to watch.
I keep hearing this name. You will be sorry if you advance this lightweight into a judgeship. No ability to make a decision. Statis. The precise wrong personality to bring into such a position.
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We need more turnover in these courts. Move 'em up or out. Churn 'em and burn 'em. You'll get diversity, then, ready or not.
Someone with political experience; a woman; a minority; a trial judge or someone with substantial trial experience; a shortstop; an oboe player.
I think Judge Sotomayor fits many categories. Gov. Granholm would too. I suppose Derek Jeter fits two of them.
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Leftist claptrap. Anyone can see that the Court really needs a defensive lineman, or perhaps a shooting guard.
Even if you can't readily quantify the value of diverse experiences - it's hard to deny that they probably exist.
For example, would you want a court that was composed solely of 62 year old left handed guys who graduated St. Albans/Harvard/Yale who were married with 2 children and whose only hobby was playing bridge?
One historical factoid tickled my intuition recently, stated by Jeffrey Toobin on CNN: The court that decided Brown v Board unanimously had no justices who were judges when they were nominated.
Perhaps some would find that result a bug not a feature. But I also recall that John Roberts lauded Brown as an elegant example of judicial modesty. So that intuitive part of me has faith that it will all work out in the end.
BTW, Jan Crawford Greenbug is reporting that there is now an official short list of six.
You seem to be a new commenter, or at least an old commenter posting under a new name. Either way, welcome to the blog we call the Volokh Conspiracy. I hope you enjoy your time here.
As for your defense of Uh_Clem, I believe you are misunderstanding my point, and I personally apologize to you for my lack of clarity. I think it is "hard" to assemble such a group not because there is some intrinsic difficulty with assembling a group of experts, but because the political pressures on a President are too intense: it requires a president to sacrifice his interests for an ideal of diversity, even if he has no particular interest in that aspect of diversity.
For example, imagine it is agreed in the abstract that it would be awesome to have an ERISA expert on the Court. The President then gets his one pick -- his one opportunity in his life to influence the Court's membership. The President is likely to think that even if it would be cool to have an ERISA expert on the Court, his one shot is too important to narrow the field to ERISA experts.
shortstop and woman?
I suppose Derek Jeter fits two of them.
shortstop and woman?
evil and bad fielder.
(insert a-rod flute playing comment here)
I think it would be better to call this background or expertise.
I mean he was a con law professor so it seems reasonably plausible that he has some favorite answer to the hypothetical 'who would you appoint to the supreme court' that he's been batting around in his brain for years and it could be totally out of left field.
Perhaps those stating that diversity is irrelevant would care to comment?
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