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.