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"What an Audacious Move!,"

comments an anonymous correspondent, referring to this Pioneer Press (St. Paul) headline:

Gov. Pawlenty appoints lawyer to lead Supreme Court

Anderson (mail):
I believe the newsworthy event that the headline strove to depict was that the chief justice was selected from outside the court, and indeed was not any sort of judge at the time of his appointment.
3.20.2008 2:05pm
CEB:
Are there any constitutional or statutory requirements that a judge have a law degree? I remember this question coming up during the "Harriet Miers Debacle," as it will be forever known, but didn't catch the answer.
3.20.2008 2:06pm
Just Saying:
CEB-- At the federal level, no. There's literally no qualifications listed in the constitution. If there was a vacancy, there's nothing stopping Bush from trying to appoint Jenna Bush or Paris Hilton.
3.20.2008 2:11pm
Smokey:
Ooh. I prefer Paris Hilton. Think of the comments that would generate!
3.20.2008 2:16pm
hattio1:
Smokey,
Something tells me that if Paris were appointed and cofirmed, she would be upholding privacy every time it came up.
3.20.2008 2:23pm
John Burgess (mail) (www):
Or went down....
3.20.2008 2:31pm
Cornellian (mail):
Could Congress enact a statute prohibiting the appointment to the Supreme Court of someone who did not have a law degree?

Could the Senate adopt a rule requiring unanimous consent to ratify the nomination of someone who did not have a law degree?
3.20.2008 2:37pm
The Unbeliever (mail):
Next up: most legal briefs suffer from a lack of brevity. Microfilm at 11.
3.20.2008 2:59pm
Tony Tutins (mail):
Cornellian -- what is this "law degree" of which you speak? Did John Marshall have one?
3.20.2008 3:10pm
AnonLawStudent:
Cornellian,

For a period of time after passage of the Goldwater-Nichols Act, confirmation of a flag or general officer, i.e., promotion to rear admiral or brigadier general, was explicitly conditioned on that officer having served a joint tour. The requirement was codified at 10 U.S.C. 619(e), I believe, but was repealed in 1993(?). Although Congress certainly had an additional power involved - that of "mak[ing] Rules for the Government and Regulation of the land and naval Forces," Art. I, Sec. 8 - a prerequisite for confirmation of SCOTUS Justices would be no different. The Senate can deny confirmation for any reason or no reason.
3.20.2008 3:13pm
guest:
I think Cornellian's first question raises a finer point. Because Supreme Court vacancies can (we presume) be filled by presidential recess appointments, could Congress restrict the President's recess appointment discretion by imposing a J.D. prerequisite? I seem to recall a case where the Court struck down state-imposed term limits for congressmen because the state was impermissibly expanding the qualifications for congressional office beyond those which were set at the constitutional level. Perhaps that case would equally apply to this hypothetical.
3.20.2008 3:45pm
Soronel Haetir (mail):

Given that there have been recess appointments of SCOTUS justices (all of whom were later confirmed) I have a hard time seeing the Senate being able to place conditions upon that power.

The more interesting question would be the court's reaction to the recess appointment of a completely unqualified person.

also wonder if such a move would trigger a big enough backlash to bring about impeachment.

Would be even more fun if the recess appointment were the CJ.
3.20.2008 3:53pm
Tobias:
What powers does the chief have over the other justices?
3.20.2008 3:55pm
CEB:
Cornellian's question gets thornier the more I think about it. Here is a not-too-implausible (I think) scenario. At some point in the future, Republicans (who by some fluke have a majority in Congress that they fear they will soon lose) worry that after the election cycle, President Obama is going to appoint Bill Clinton to the Supreme Court. To avoid this, they pass (and override the veto of) a bill requiring that appointees to SCOTUS be a member of the bar in good standing. Would it be a separation of powers issue? Also, the numbers required for appointments v. the numbers required to pass legislation might make the issue moot.
3.20.2008 4:10pm
dew:
Rules for the Government and Regulation of the land and naval Forces," Art. I, Sec. 8 - a prerequisite for confirmation of SCOTUS Justices would be no different. The Senate can deny confirmation for any reason or no reason.

I am not sure that answers either question Cornellian asked very well.

For example, I would guess "Congress" passing a law requiring a law degree would have troubles - the constitution's appointments clause cuts the House out of getting a say in who can be a SCotUS judge, and passing a law would seem to be a back-door modification to that clause giving them a say. The constitution *does* give the House a say in Art. I Sec 8, so that example does not seem directly relevant here.

A senate rule on the other hand should be fine, unless you agree with the "nuclear option" arguments from a few years ago, that claimed (if I remember correctly) that the constitution mandates that any judicial nomination must go to the Senate floor for an up-or-down vote, notwithstanding any Senate rules to the contrary.
3.20.2008 4:20pm
Soronel Haetir (mail):

I was thinking of a recess appointed CJ in the context of an impeachment trial over that appointment.
3.20.2008 4:37pm
The Cabbage (mail):
Tobias,

He gets to make up the pledge's nicknames.
3.20.2008 5:30pm
John Herbison (mail):
The Constitution specifies qualifications for members of Congress and provides in substance that each house should determine its membership in the event of a question. There is no corresponding constitutional provision as to the Supreme Court.

Congess has fixed (and sometimes altered, though not recently) the number of members of the Supreme Court. Why would imposing an educational requirement be different?
3.20.2008 5:44pm
Randy R. (mail):
"What powers does the chief have over the other justices?"

Evil powers, of course.
3.20.2008 7:50pm
Wahoowa:
Soronel Haetir:

Not all SCOTUS recess appointments have been later confirmed by the senate. In fact, our first president made a recess appointment of John Rutledge to be chief justice but the senate later rejected him.

Not that it really has much of anything to do with the current topic, but I thought I'd mention it anyway.
3.20.2008 8:09pm
Steve2:
""nuclear option" arguments from a few years ago, that claimed (if I remember correctly) that the constitution mandates that any judicial nomination must go to the Senate floor for an up-or-down vote, notwithstanding any Senate rules to the contrary."

I certainly didn't agree with that argument. As I understand it, the constitution just mandates "advice and consent", and doesn't say anything about the form of either. Dragging your feet and trying to fillibuster a nominee seems to me like it does a good job of communicating the idea, "I think your nominee sucks, nominate someone different". In my mind, that counts as advice (not necessarily good advice, since it doesn't have the helpful "for the following reasons:..." element). And as for consent... does saying "yes" really mean anything if you can't also say - and enforce - "no"?

Personally, I don't think having a law degree, or a legal background, is necessary to be a good judge. Being good at analysis is, being able to take complex issues and think about them in complex terms is, and (especially at an appellate level) appreciating that your decisions affect people's lives is.
3.20.2008 8:56pm
Harvey Mosley (mail):
Steve2:


Personally, I don't think having a law degree, or a legal background, is necessary to be a good judge.


I'll go one more step and say that a judge should be prohibited from having a JD. As I've said before, if an ordinairy citizen educated to the level of a high school graduate can't understand a law, that law is too complicated and should be struck down.
3.20.2008 10:53pm
dew:
I certainly didn't agree with that argument.

Well, it does seem like a tough argument without some sort of non-obvious emanation or penumbra, but I thought it would be polite to note that others have a different view.

Personally, I don't think having a law degree, or a legal background, is necessary to be a good judge.

Are there many examples of this (not just asking you personally)? The state I live in (MA) does not require judges to have a law degree, but no lawyer I have asked (plus a long-time state rep) could remember any judge who was not a lawyer.
3.21.2008 10:18am
Tony Tutins (mail):

Why would imposing an educational requirement be different?

Because it can be arbitrarily manipulated to exclude or favor certain candidates, and because the criterion is essentially meaningless.

Think of the old literacy tests for voters. There was a famous Buchwald column (I assume satire) where the black applicant had to analyze Hamlet and read a passage in Sanskrit, while the white applicant just had to sound out "cat" (C-A- come on, you're getting warmer.)

Then, did the candidate graduate at the top of his class or the bottom? Did he go to Cooley or Yale? What does "ABA-accredited" mean, anyway? What if he got a JD, but never passed any bar exam? Maybe he just sat in a room for three years, producing only random scrawls and scribbles in his blue books.
3.21.2008 12:31pm