The Supremes
With Justice Souter's announcement of his forthcoming retirement, one of Washington's favorite parlor games, speculating on a Supreme Court nominee, is shifting into full gear. Both sides of the isle have wasted no time in attempting to put a stake in the ground with respect to criteria that will facilitate the prospective replacement's Senate confirmation. Interestingly, there is a movement afoot to consider a non-lawyer.
Although all 110 Supreme Court Justices to-date have been lawyers, there is actually no constitutional or statutory provision that requires such a background. In fact, there is also no age or citizenship constraint. Arguably, the closest we've come to the selection of a non-lawyer was FDR's near choice of Princeton professor, Edward Corwin. But, he happened to be a constitutional scholar.
So, would a non-lawyer be a good idea? In my estimation, no. Undeniably, there are plenty of "lay" people with the requisite intellectual horsepower. That's not the concern. I'm apprehensive that interest in non-lawyers is really about shopping for ideological and/or key issue alignment. No doubt, that is also the case, implicitly or explicitly, when choosing among lawyers. There is, I believe, an important distinction. Lawyers are trained to follow and respect the law. They are accustomed to operating within a defined legal and professional framework. And, they have a directly relevant and reviewable track record, not one that requires considerable extrapolation.
Almost by definition, non-lawyers are likely to be associated with a particular perspective or issue area. If they are politicians, they are apt to have views associated with their party. If they are business people, they are inclined to be sympathetic to the interests of industry. You get the picture.
Obama needn't take the risk and endure the scrutiny connected with heading down the non-lawyer path. Democrat/Liberal presidents have a perfect track record of selecting simpatico Supreme Court nominees. There really hasn't been a thought-to-be Liberal nominee who turned out to be Conservative. Republicans/Conservatives can't make the same claim. They've had numerous blunders (by their definition); including Teddy Roosevelt's choice of Oliver Wendell Holmes, Eisenhower's nominations of Early Warren and William Brennan, Nixon's selection of Harry Blackmun, Ford's tapping of John Paul Stevens, and George H. W. Bush's mistake with Souter.
Obama would probably be wise not to open Pandora's Box and set a precedent that would be more beneficial to subsequent Republican/Conservative presidents.
Although all 110 Supreme Court Justices to-date have been lawyers, there is actually no constitutional or statutory provision that requires such a background. In fact, there is also no age or citizenship constraint. Arguably, the closest we've come to the selection of a non-lawyer was FDR's near choice of Princeton professor, Edward Corwin. But, he happened to be a constitutional scholar.
So, would a non-lawyer be a good idea? In my estimation, no. Undeniably, there are plenty of "lay" people with the requisite intellectual horsepower. That's not the concern. I'm apprehensive that interest in non-lawyers is really about shopping for ideological and/or key issue alignment. No doubt, that is also the case, implicitly or explicitly, when choosing among lawyers. There is, I believe, an important distinction. Lawyers are trained to follow and respect the law. They are accustomed to operating within a defined legal and professional framework. And, they have a directly relevant and reviewable track record, not one that requires considerable extrapolation.
Almost by definition, non-lawyers are likely to be associated with a particular perspective or issue area. If they are politicians, they are apt to have views associated with their party. If they are business people, they are inclined to be sympathetic to the interests of industry. You get the picture.
Obama needn't take the risk and endure the scrutiny connected with heading down the non-lawyer path. Democrat/Liberal presidents have a perfect track record of selecting simpatico Supreme Court nominees. There really hasn't been a thought-to-be Liberal nominee who turned out to be Conservative. Republicans/Conservatives can't make the same claim. They've had numerous blunders (by their definition); including Teddy Roosevelt's choice of Oliver Wendell Holmes, Eisenhower's nominations of Early Warren and William Brennan, Nixon's selection of Harry Blackmun, Ford's tapping of John Paul Stevens, and George H. W. Bush's mistake with Souter.
Obama would probably be wise not to open Pandora's Box and set a precedent that would be more beneficial to subsequent Republican/Conservative presidents.
The track record of liberal presidents choosing justices who remained aligned with them ideologically isn't perfectly clean--both Felix Frankfurter, appointed by Roosevelt, and Byron White, appointed by Kennedy, both leaned significantly to the right after joining the bench.
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I'll partially agree with you on Frankfurter regarding his strong advocacy of judicial restraint (most associated today with more Right-leaning constructionists and states rights proponents). But, I have to disagree when it came to his politics. He was considered quite liberal. Many actually thought him to be radical. And, as you know, he was a VERY, VERY close collaborator with Roosevelt on all sorts of issues. In a lot of respects, Frankfurter was a shadow member of the cabinet while he sat on the Supreme Court.
I will have to largely disagree on White. He and Kennedy were fairly ideologically aligned. Remember, by today's standard, JFK would at least be a moderate Republican on the preponderance of issues.
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I understand White to be a personal rights issues conservative, voting for sanctions against flag burners, restrictions on pornography, and restrictions on abortion. He was most famously conservative in criminal rights cases, dissenting from the Escobedo, which gave suspects the right to counsel during interrogation, and Miranda which established police conduct during investigations. On the other hand, he voted to uphold the Voting Rights Act and Civil Rights Act, so perhaps he was politically aligned differently, depending on the encapsulated subject areas.
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Obama has already said he wants a person with compassion,empathy and a history of working for social justice (code for socialist). Its gonna be another liberal hack legislating from the bench, and we'll get a bunch of stupid decisions allowing the gov't to have eminent domain over our entire lives.
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I read a statement that said lawyers and politicians are two of the least respected professions in our society. So why is it that a judge who is both a lawyer and a politician, is held in such high regard?
I believe and time has shown that the founding fathers had great insight when they wrote our constitution. They left it open for a non lawyer to sit among the judges. 110 lawyers with one dynamic non lawyer could be refreshing. They left it open for a reason. How about you?
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I'm glad the constitution does not preclude a non-lawyer from becoming a Supreme Court Justice, but it would take a very special "lay" person to fill that role. I worry that the law has become too complex for those not trained in it, but more importantly, I'm concerned that for a non-lawyer to be selected, he/she would likely have had to distinguish him/herself in some field/discipline that could bias that persons judgment in related cases. Of course, we all have certain pre-dispositions, but lawyers/judges are at least schooled to set aside those opinions and rule dispassionately. My biggest fear is that presidents will pick a non-lawyers as advocates/proponents for/of particular issues.
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Lawyers invented "spin" and just like the bible, lawyers/judges will use the constitution for their own personal agenda. I am not schooled in judicial history but of the 100+ judges a FEW were very passionate about keeping the black man down for 150+ years. If any branch could have save us from ourselves and the 600,000 lives in the Civil War they could have at least tried. Believe it or not I still place them in high regard. A side note: Patti worked in Judge Tim Lewis'(federal appellate) office for 9 years and a great deal of her time was spent reviewing resumes of law grades who would do all the dirty work so to speak. At one time Tim had three law grads that were first in his/her class at Stanford, Harvard and Yale working for him. A lay person with a good head could do better than just get by with that type of assistance. The judges at the supreme level have even more great minds working for them, doing the due diligence. So how about you? I appreciate your bias.
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