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Prior Judicial Experience and Supreme Court Nominations:
I've seen lots of discussion recently about the merits of nominating someone to the Supreme Court who is not a career judge. Proponents generally argue that nominating someone who is not a judge already will help the Court by adding some real-life practical experience.

  I think there may be something to this; there can be pros and cons to nominating a person without prior judicial experience, and this may be a "pro" in some cases. At the same time, I'm not quite sure a significant difference exists between nominees with prior judicial experience and those without. There may be a difference, but it's helpful not to overstate it.

  Here's my thinking:

  1. Most judges considered for appointment to the Supreme Court have been judges only for a few years. Even if appointment to a federal appellate judgeship somehow ended their ability to gain "life experience," they would still have all that life experience from the time before their appointment.

  2. In recent years, many Supreme Court Justices have served for 20 or even 30 years. Even if they were not "career judges" at the time of their appointment, they became career judges after a few years at the Court.

  3. The effect of life experience can cut in lots of different ways. One example is Justice Douglas, who had some interesting life experience before he was appointed to the Court. While he was quite young when he was confirmed (40, I believe), Douglas had been head of the SEC in the middle of the New Deal. When he got to the Court, however, he found the work surprisingly boring. Douglas was more interested in life and its experiences than the intricate details of federal law, and his lack of interest led to some notably sloppy opinions over his 36 years at the Court.

  4. Sitting judges have life experience, too. Life experience often comes from life more than from a job.

  Of course, this doesn't mean that nominees who have never been judges before are worse nominees than those that have. Some of my favorite Justices had not served as judges prior to their appointment to the Supreme Court. And I think it's fair to be concerned that a nominee who was appointed to the bench at a very young age may be a little too cloistered from the rest of the world. But on the whole, trends are hard to identify. My guess is that prior judicial experience probably matters less than many people think.
rholtmeyer (mail):
How about nominating someone who isn't a lawyer?
7.13.2005 2:33pm
42USC1983 (mail):
When people say they want a judge with "real-life practical experience" here is who "they" are, and what they usually mean:
A) We - the ruling class - want someone who worked "in business" and thus knows that tort reform should be constitutionally mandated; or
B) We - the prosecutors (who are also members of the ruling class) - want someone who's worked in government, and thus knows how to play ball; or
C) We - the do-gooders (who are also members of the ruling class) - want someone who was kicked around in life. That way, he'll be skeptical of governmental assertions of power.

Lots of people who would make excellent Justices have lived rich lives. Secretary Chertoff comes to mind. But do liberals want someone with his "real-life practical experience"?

On the other hand, Judge Prado has lived an enviably rich life (infantry officer, prosecutor, defense lawyer, judge); do conservatives want someone with his ""real-life practical experience"? Not if it means he'll affirm Roe.

So, like everything else touching the nomination process, "real-life practical experience" is Newspeak for "someone who will do our bidding."
7.13.2005 2:47pm
Hank:
How about nominating someone who isn't a lawyer? I assume that the questioner is not a lawyer. Although the Supreme Court cases that get the most press attention, such as those involving capital punishment and abortion, often do not require much legal knowledge, as putting aside judicial pretenses, they are largely moral decisions, many other cases involve legal concepts that a non-lawyer would be utterly unqualified to rule on.
7.13.2005 3:14pm
JohnO (mail):
Maybe I'm nuts, but I read the comments by Specter and Leahy to be code for "Al Gonzales."

Of course, someone like John Roberts has only been a judge for a short period of time, with long stints in government and private practice.
7.13.2005 3:15pm
GMUSL 1L (mail):
And what about the "real world experience" of then-Gov. Earl Warren?

Thanks a bunch, Ike!
7.13.2005 3:16pm
Craig Oren (mail):
Or Hugo Black?

I actually had read the news stories more narrowly. I thought the emphasis was on finding someone who had not been a federal circuit court judge, e.g. a trial judge (the court, I think, has few members with trial court experience) or a state judge (who might be sympathetic to states on federalism claims.)
Having a state judge would also replace O'Connor, herself a state court judge.
7.13.2005 3:23pm
42USC1983 (mail):
GMUSL 1L, thank you for proving my point. We only care about real-world experience if it leads to the "correct" results. Hell, you would have thought that Earl Warren, a former prosecutor, would have hung 'em high from One First Street.

Speaking of real-world experience ... Scalia and Rehnquist both served as AAGs at OLC. Might their "real-world experiences" at OLC have told us how they'd vote in Hamdi? They split.

So maybe a person's experiences aren't as relevant as the person's character. Or am I being a old-fashioned?
7.13.2005 3:40pm
Justice Fuller:
Craig: "or a state judge (who might be sympathetic to states on federalism claims)"

You mean like David Souter?
7.13.2005 3:40pm
Tom Holsinger (mail):
Earl Warren was a great chief justice. Baker v. Carr happened on his watch, and that saved the federal system. Had state legislatures not been forced to reapportion, they'd have been unable to address necessary issues and far more power would have drifted to Congress as the only possible agent for change.

Also consider how helpful Thurgood Marshall's pre-bench experience was to the Court - Rehnqust made a particular note of that.

Legal technicians have brought us disaster.

The United States Supreme Court desperately needs appointees with political sense and considerable experience serving in other branches of government. The Supreme Court's violation of separation of powers has become a major issue (notably Rasul v. Bush). Governors who had served as state attorney generals would be particularly helpful in this regard.
7.13.2005 3:41pm
big bran muffin:
imagining two possible nominees, (a) an appeals court judge with five or more years of experience on the bench and (b) a sitting or former senator who may have graduated from law school thirty or more years ago, i think the difference matters significantly because (b) may have an under-developed sense of what she will no longer be able to do once a justice. [(a} isn't the nominee you're talking about in (1), a nominee with only a few months or years of experience. to the extent that these recent court of appeals judges come from state supreme courts, though, i think they gain some of the horse sense that i'm talking about.]

(b), i think, would have gotten to where she is by being results oriented, delivering to constituents, brokering compromises, blocking agency action, what have you. the ability to do those things well seems to me like a tremendous personal asset in a person who will join eight other justices that have spent the last ten years hardening their differences in many key areas. how easily, though, will such a hard charger be able to change decision-making gears?

unlike (a), (b) won't have had the experience of affirming and reversing trial courts or maybe herself being reversed by the supreme court. bringing to the table that experience of applying, and being limited by, statutes/standards of review/rules of procedure matters because (b) will suddenly find herself in a role where she is not accountable to a higher court. (a), by comparison, will have gone from reviewing trial courts and being reviewed by the supreme court, to now reviewing the courts of appeal and the district courts.

all of which is to say that as a general proposition i'm much less comfortable with (b) than (a), less comfortable with someone who has spent their career getting results, in a political sense, being placed in a nonreviewable position atop the judiciary.
7.13.2005 3:44pm
Splunge (mail):
I don't think it's the experience that matters so much as the character. There are plenty of us plain folk who are disgusted with the lawyerly focus on trees versus forest that seems to infect some Court decisions (Kelo jumps immediately to mind), and so we think rather fondly of the idea of not having someone of a lawyerly cast of mind in the job.

The desire is phrased as a desire for a certain type of experience only because in these postmodernist days it's highly politically incorrect to speak of a man or woman's character. Violates the essential postmodernist premise that we are all simply the product of our experiences, don'tcha know? If you go down that path you might start thinking dangerous thoughts like "academic achievement is a greater function of family values and student character than teacher salary," and then where will the public schools end up? But I digress.

I think "experience" in this context is just code. What's meant is someone who, from whatever reason, thinks more like an ordinary joe than a phucking pettifogger.

For myself, I think this is a defeatist attitude. Courts are always going to be run by lawyers, and, as many have pointed out, for the majority of legalistic cases turning on the meaning of a semicolon, this is a desirable thing. The futile feeling of wanting a nonlawyer is I think driven by what Justice Scalia correctly calls the politicization of the Courts, that is, their accrual of political, as opposed to merely legal, power.

When the Court acquires the power to make political decisions, then, indeed, we the people are no longer so comfortable having four-eyed poindexters in the job and begin to have these vague feelings of wanting a man of the world, so to speak, instead.

I agree with the Scalia that the correct solution is to return the Court to its more restricted legal role of enforcing the (as best it can be determined) strict meaning of the laws from how the politicians -- located in the other branches -- write them.

Then we can choose good lawyers for the Court jobs and be perfectly satisfied, 'cause all they're going to do is be experts in parsing tons of written law and enforcing consistent application of it. God knows you'd want a lawyerly cast of mind in that job, since most of us would be driven mad by it. Then, we can reserve our wish to be led by well-rounded men of the world for the political jobs to which those men have traditionally aspired.
7.13.2005 3:48pm
Larry (mail) (www):
I have justified all sorts of crazy outcomes based on "character" and such. It is a pretty neat device because I can claim that anyone has "character" and unless they do something really bad, nobody can really claim that I am wrong.

In fact, because I generally, disagree with you, I will declare to the world that your post shows that lack character, and, I, indeed, HAVE character.

(If you are not a lawyer -- as your post seems to indicate -- it is likely that you didn't pass a character and fitness exam. This is why the rest of us (who are lawyers) have character .)

Also, I assume that you (who have declared to lack character) are aware that many consider Scalia to be a postmodernist. Not that there is anything wrong with this (and it certainly doesn't reflect on his character).
7.13.2005 3:58pm
Craig Oren (mail):
It is interesting, Tom, that your link denounces those who believe that law is a "living tree." There is a book about traditonal Jewish law -- a system that paid a lot of attention to precedents -- entitled "A Living Tree." Maybe better to be a redwood than a deadwood??

I
7.13.2005 4:01pm
aslanfan (mail):
At certain times in our history, nominating a non-judge made some sense. Earl Warren's political skills were critical in fashion a unanimous opinion in Brown. But today, one of the biggest threats to the law is the equation of law and politics, both in the public's mind and in the mind of many judges. The President should pick an outstanding lawyer who knows what it means to eb a judge and publicly justify the selection by emphasizing that it is precisely this kind of nominee who will return the Court to the business of interpreting the law, not making it. Selecting a politician would send exactly the wrong message.
7.13.2005 4:01pm
LiquidLatex (mail):
As long as they have some understanding of the law and come with highly specialized and much needed stances(business/non-social law is sorely lacking in SCOTUS' makeup) then I welcome this either way. Especially when we just saw perhaps the most illogically practical stance in Kelo that essentially means that rightfully so the county in which Justice Souter lives should bulldoze his home and build something that would generate more money for public works. Common business sense just took a nosedive out the 72th story of Trump Tower.

It looks like to me that Fred Thompson may get a nod, and he seems like he would be an interesting choice. Although he's suppose to be liberally revisionist on how he approached law making, ie. he was an "ultra" conservative to the point of being regressive.
7.13.2005 4:01pm
Igglephan:
I wonder if "political" experience is what they mean, i.e. Hugo Black, Earl Warren, and SOC. That goes really to the anti-technicalism, and to the impact that the decision have on "real world" workings of other branches of government / institutions. However, what politicians are likely candidates -- Gonzales? Orrin Hatch? Thank you, no. I'd very much prefer someone to have spent significant time practicing, at least, so they would have some idea of how legal rules work in brinign cases to their ultimate resolution.
7.13.2005 4:04pm
42USC1983 (mail):
Fred Thompson? This guy is very prudent and conscientious. He'd made an excellent Chief Justice. Look at how he is able to control Jack McCoy - the Scalia of the Manhattan DA's office. Please see the DraftThompson site for more details.
7.13.2005 4:23pm
Larry88 (mail) (www):
Are you guys nuts ? Ever try talking to a non-lawyer ? They are completely incapable of reading more than 20 pages and even synthesizing a legal argument. Instead they just repeat soundbits. Being any judge requires the ability to to that.
7.13.2005 4:31pm
rholtmeyer (mail):
Hank,

I am a lawyer. That was a terrible assumption. And I am very serious about appointing a non-lawyer to the bench.

If protecting freedom is the goal, why not a philosopher. Surely someone like Ludwig von Mises, F.A. Hayek, or Karl Popper, would have made (or a living philosopher like Thomas Sowell or Milton Friedman would make) a great addition to the bench. Some, not all, philosophers are great extollers of freedom from governmental tyranny.

If logic and consistency are the objective, why not mathematicians or logicians? Afterall, they have to scrutinize every variable and run proofs of their theories to show that they know what they are talking about.

If protecting economic liberty is the goal, why not appoint a Chicago/Austrian minded economist?

If protecting abortion is the goal, why not an abortionist?

If protecting religion is the goal, why not a theologian?

These last 2 are obviously throwaways.

My point is that lawyers protect lawyers and "lawyer think." It is my belief that the Court has been so heavily weighted with lawyers and the "rule of law" that the common man is disinterested and disgusted with lawyers and the complexity of modern law. Further, the Supreme Court has rubberstamped Congress' continued erosion of personal economic liberty in favor of regulations that are generally discernible only to lawyers, and almost always in favor of government expansion, or some well-heeled business interest.

Off topic. This process is going to be a shenanigan-riddled affair in which every a-hole interest group is going to scare the BeJesus out of their paying followers by painting people they disagree with as anti-[fill in insanely stupid self-associating jingoist group conscious adjective/noun]. Why not just be honest and say we want our guy because we believe in government protected rents and rights for us, and not you or anyone else who doesn't share our same religion, sex, creed, color, wardrobe, hair color, beer tastes...?
7.13.2005 4:53pm
Tom Holsinger (mail):
Craig,

I'm looking for nominees with the background to recognize separation of powers problems, i.e., those whose major career experience is outside the judicial branch, preferably those who know something about legal administration (i.e., state attorney generals, U.S. Attorneys, etc.) to give the other justices badly needed advice on the real world effect of their decisions both politically and administratively.

I have had it with judicial technicians. There are enough of those. If the Supremes must set policy, I want it to be set by people who know what the **** they are doing.

The politicalization of the judiciary created by their assumption of policy-making power, in violation of separation of powers, has led to least common denominator effects in selecting &confirming nominees - legal technicians with little controversy, due to minimal real world experience, tend to be favored over those who had lived in the public political sphere.

Baker v. Carr could not have been issued by any Supreme Court bench in the past 20-25 years. It was sloppy legal reasoning which saved the federal system, i.e., it made great political and constitutional sense. Only leadership with real world political experience made it possible.

"If your only tool is a hammer, every problem looks like a nail." Those whose major career experience has been on the bench approach policy-making calls with the wrong perspective. If the Supremes are to continue making policy decisions better left to other branches, they should have justices who know how to make policy decisions.
7.13.2005 4:55pm
NotLarry (mail) (www):
Rest assured folks, that I have used the terms 1) rule of law; 2) common man; and 3) common sense to explain why the state of the law should be changed to avoid requiring defendants to pay the common man (defined as people who make less than $400,000/year) for injuries that they caused.

These terms are awesome since the commoners fall for them, hook, line, and sinker.
7.13.2005 4:59pm
Maniakes (mail) (www):
If we're keen on nominating a politician, and the goal is someone who will respect liberty and the constitution, why not Congressman Ron Paul (R/Lib - TX)?
7.13.2005 5:01pm
Larry88 (mail) (www):
"respect liberty and the constitution"

Ha ha. I can justify ANY result by saying that. And you lay people will buy it. In fact, I can't think of a single justice or politician who can't be described as subscribing to that view.

Isn't Mr. Paul a singer?
7.13.2005 5:17pm
Robert Schwartz (mail):
IIRC, Justice Douglas had many real world experiences when he was on the Court, ... mostly with younger women.
7.13.2005 5:52pm
Maniakes (mail) (www):
Ha ha. I can justify ANY result by saying that. And you lay people will buy it. In fact, I can't think of a single justice or politician who can't be described as subscribing to that view.

You forget that when I say "respect liberty and the constitution" I mean "respect my concept of liberty and my preferred understanding of the constitution".
7.13.2005 6:12pm
Harold365:
It seems to me that USSC justices, if they were judges before their appointment, tend to have been fast-tracked through the appellate system. I think one element missing from the Court is an understanding of what a first-instance judge needs to know. Since it is those judges who must apply the law to facts, one would think it important to understand what is in their minds. That would be a skill set that neither lawyers, appellate judges or academics can really bring to the table. Appoint a state or district court judge with, like, 20 years experience, and I think you'd get something really different.

On a related point, regardless of particular experience, USSC judge should be old. There should be a mandatory minimum age of 60. No one under 40 has any real experience, and without a limit, there is too much temptation for Presidents to appoint younger people to increase the length of their "legacies".
7.13.2005 6:22pm
CharleyCarp (mail):
I think I'd like to see someone with more than nominal district court experience.
7.13.2005 6:28pm
TS:
I agree with the poster who suggested that "not a judge" is code for Gonzales. If Bush is ever going to appoint him, what difference would it really make if he had sat as a judge for a year? Despite the beating he took being confirmed Gonzales is probably about as "O'Connor-y" as the Dems are likely to get. He'd be confirmed easily.

Choosing a non-judge also puts Ted Olson in the running.
7.13.2005 6:44pm
Bruce Hayden (mail):
You are forgetting a more recent SC Justice who had not served on the bench - Byron White. He was in private practice in Denver, when he organized Kennedy's campaign in Colo. They apparently met then, and got along well, esp. since White was an athelete, starring at CU, then playing for the Detriot Lions. Upon being elected president, Kennedy first appointed White as an assistant AG, and, then, a year later, to the Supreme Court.

Apparently a sports fanatic to the end, one of our local talk show hosts (and tort atty) here in CO, Dan Caplis (630 KHOW), tells of being invited to attend a CU football game with White and a lot of other lawyers. White was, as usual, surrounded by fawning attorneys - so Caplis (staunch Republican) was surprised when the two of them spent a good portion of the game talking football.
7.13.2005 10:00pm
Bruce Hayden (mail):
But Gonzales served on the Texas Supreme Court - which is arguably much more relevant bench experience than serving as a trial court judge.
7.13.2005 10:01pm
lawdevil:
I would like to see a Judge who has some extensive experience as a trial judge.
7.14.2005 11:47am