The Volokh Conspiracy - Supreme Court Nominees & the ConLaw Bias:

Defending the nomination of Harriett Miers in the WSJ, Ruth Wedgwood remarkst (subscription required):

The Court is well-endowed with ex-academics and dirigiste ex-government lawyers, but few justices have worked in the private sector or helped to counsel a business for any perceptible length of time.

Setting aside the merits of the Miers nomination, I think this is a point worth some elaboration.

Reading some of the commentary on Miers' qualifications (or lack thereof) to be a Supreme Court justice, one could get the impression that a fully formed theory of constitutional interpretation is the most important, if not the exclusive, qualification for a prospective Supreme Court nominee. I think this view is mistaken. Indeed, if anything the current Court, as a whole, lacks significant experience in many other areas of law that are just as important to the Court's work.

The majority of the Court's docket each year has little to do with Constitutional Law. Most cases are statutory cases. True constitutional law cases implicating founding principles account for a small minority of the cases before the Court in any given year. Many (if not most) ConLaw cases concern crimminal procedure, rather than the sorts of subjects covered in the standard ConLaw curriculum -- and these days criminal procedure is effectively its own separate field. (In my experience, most criminal procuedure professors are not experts in basic constitutional law and vice-versa (current co-bloggers excepted, of course.)

One could argue that the non-CrimPro constitutional law cases are inevitably, if not inherently, the most consequential cases before the Court. Perhaps, but this is hardly evident. Decisions about the application of federal jurisdictional statutes, class action certifications, or finality requirements have tremendous implications for the practice of law. Looking at last term, it is not at all clear to me that the Court's decisions in the two Ten Commandments cases last term are any more consequential than National Cable & Television Association v. Brand X Internet Services or Bates v. Dow Agrochemicals, cases concerning judicial deference to agency interpretations of federal statutes and statutory preemption of state common law tort remedies, respectively.

However important it is for a new Supreme court justice to have a fully formed theory of constitutional interpretation, such a judicial philosophy would be of little help in deciding the majority of cases. An overarching theory of constitutional interpretation is valuable, but it hardly tells one how to evaluate statutory conferrals of federal jurisdiction, resolve contractual disputes, or determine the proper standard of review in an antitrust case.

My point is not the constitutional law is unimportant for prospective Supreme Court justices. I just think that those of us who teach and write in the area are inclined to exaggerate its importance on the Court. I care about a prospective justice's approach to constitutional interpretation as much as the next legal blogger, but it's hardly the only question I consider important in considering a nominee. Indeed, I would argue that a Supreme Court with a wider array of experience would be better than one made up of nine experts in constitutional law. Experience as a prosecutor or criminal defense attorney is likely makes a prospective justice more qualified to consider criminal procedure cases than a unified theory of federalism, representation-reinforcement, or judicial review of legislative action.

My point here is not that Miers is qualified to be a Supreme Court justice. I merely wish to suggest that some of us academic blogger-types have exaggerated the importance of constitutional law experience for prospective Supreme Court justices.

	[Juan Non-Volokh, October 15, 2005 at 7:55pm] Trackbacks Supreme Court Nominees & the ConLaw Bias: Defending the nomination of Harriett Miers in the WSJ, Ruth Wedgwood remarkst (subscription required): The Court is well-endowed with ex-academics and dirigiste ex-government lawyers, but few justices have worked in the private sector or helped to counsel a business for any perceptible length of time. Setting aside the merits of the Miers nomination, I think this is a point worth some elaboration. Reading some of the commentary on Miers' qualifications (or lack thereof) to be a Supreme Court justice, one could get the impression that a fully formed theory of constitutional interpretation is the most important, if not the exclusive, qualification for a prospective Supreme Court nominee. I think this view is mistaken. Indeed, if anything the current Court, as a whole, lacks significant experience in many other areas of law that are just as important to the Court's work. The majority of the Court's docket each year has little to do with Constitutional Law. Most cases are statutory cases. True constitutional law cases implicating founding principles account for a small minority of the cases before the Court in any given year. Many (if not most) ConLaw cases concern crimminal procedure, rather than the sorts of subjects covered in the standard ConLaw curriculum -- and these days criminal procedure is effectively its own separate field. (In my experience, most criminal procuedure professors are not experts in basic constitutional law and vice-versa (current co-bloggers excepted, of course.) One could argue that the non-CrimPro constitutional law cases are inevitably, if not inherently, the most consequential cases before the Court. Perhaps, but this is hardly evident. Decisions about the application of federal jurisdictional statutes, class action certifications, or finality requirements have tremendous implications for the practice of law. Looking at last term, it is not at all clear to me that the Court's decisions in the two Ten Commandments cases last term are any more consequential than National Cable & Television Association v. Brand X Internet Services or Bates v. Dow Agrochemicals, cases concerning judicial deference to agency interpretations of federal statutes and statutory preemption of state common law tort remedies, respectively. However important it is for a new Supreme court justice to have a fully formed theory of constitutional interpretation, such a judicial philosophy would be of little help in deciding the majority of cases. An overarching theory of constitutional interpretation is valuable, but it hardly tells one how to evaluate statutory conferrals of federal jurisdiction, resolve contractual disputes, or determine the proper standard of review in an antitrust case. My point is not the constitutional law is unimportant for prospective Supreme Court justices. I just think that those of us who teach and write in the area are inclined to exaggerate its importance on the Court. I care about a prospective justice's approach to constitutional interpretation as much as the next legal blogger, but it's hardly the only question I consider important in considering a nominee. Indeed, I would argue that a Supreme Court with a wider array of experience would be better than one made up of nine experts in constitutional law. Experience as a prosecutor or criminal defense attorney is likely makes a prospective justice more qualified to consider criminal procedure cases than a unified theory of federalism, representation-reinforcement, or judicial review of legislative action. My point here is not that Miers is qualified to be a Supreme Court justice. I merely wish to suggest that some of us academic blogger-types have exaggerated the importance of constitutional law experience for prospective Supreme Court justices.