Supreme Court Justice Experience
Responding to the recent calls for President Obama to replace David Souter with someone with “political experience” rather than going 9 for 9 with prior Courts of Appeal judges, Orin Kerr comes up with the ideal career path for a Supreme Court Justice:
First, it would be very helpful for the candidate to have a science background, all the better a Ph.D. After she gets her Ph.D., she should spend a few years volunteering to help the poor to get a better sense of poverty in our society. She should then go to law school. After law school, she should clerk for a magistrate judge, a bankruptcy judge, a district court judge, a court of appeals judge, and a Supreme Court Justice. That way, the nominee will have a good sense of what it’s like at all stages of the federal court system.
The candidate should then have considerable practice experience. In particular, the candidate should spend at least 5 years at a large law firm, followed by 5 years as a solo practitioner. That way she’ll really understand legal practice. But that practice would be mostly civil law, and Supreme Court Justices also deal a lot with criminal law. The candidate should therefore get experience as a state prosecutor and then experience as a federal prosecutor. After that, the candidate should obtain experience in criminal defense, by spending a few years as public defender in the state system and a few years as a public defender in the federal system.
It goes on for a few more paragraphs, but you get the idea.
Regardless of the experience and practice of the last 30 years to the contrary and the chortling from various and sundry parties there is no actual constitutional requirement that prospective Supreme Court justices have been a former editor of the Harvard or Yale Law Review. Nor is there a requirement that the prospective justice have been a judge in the Federal Court of Appeals nor even have experience as a judge at all. The prospective justice need not have practiced law although I think we can safely say that having passed the bar would be nice.
I believe that it’s perfectly legitimate for us and even the Obama Administration to reflect on what sort of justice serves the country best. It might be that a Harvard or Yale Law grad who’s clerked for a Supreme Court justice and served in the U. S. Court of Appeals is the right choice. I don’t think it’s the only choice.
No, I agree. I take Kerr’s point that any given nominee will necessarily be deficient in any number of areas. But it might be worth ameliorating that by diversifying the backgrounds of the nominees.
I think it would be nice to have at least a few members of the SCOTUS with experience as a trial court judge. Souter IIRC was perhaps the only one of them that did, and whether or not he was a mediocore justice (certainly no Stevens), I think the point stands.
I wonder where all these useful suggestions were when Bush was president.
How about subjecting them to a wrong door raid too? No really.
Orin Kerr’s tongue in cheek is very pointed, but I think I would want to see a brilliant lawyer with no prior judging experience. I was one of a few people who had no problems with Harriet Miers, and by that same standard I don’t think I’ll cry foul over Kagan.
But if I had my way I’d want it to be Janice Rodgers Brown, FTW.
Who ever gets the job , you can bet it will be someone who sees the constitution as a peripheral document, as opposed to ultimately the only document of reference, when considering an opinion.