Sunday, May 3, 2009

Dear President Obama...

Please pick an attorney to replace Justice Souter. I know there's always a lot of pressure to pick an "average American" type for the Court, and I respect that. I can also appreciate that having a diversity of perspectives and life experiences will be beneficial for the Court. But let's not go crazy here. The Court is not a political actor--at the least, it's not political in the way the legislative and executive branches are.

So while I'd fully support Obama's decision to follow Senator Leahy's advice and pick "somebody who has had some real-life experience, not just as a judge," I'm troubled by the implications of these kinds of preferences if taken to their logical extremes. Especially given Sen. Leahy's (and other's) expressed desire to "see more people from outside the judicial monastery." It may sound elitist, but this job is not for anyone--it's for someone trained in the law, who understands the law, and is not picking sides based on outcomes.

I can live with a selection who has "real-life experience" (whatever that means), so long as part of that experience involves the training and background to work with complicated, interesting legal issues on a daily basis.


  1. Choosing someone with real life experience isn't elitist, it's practical. Here's hoping that common sense plays some role in this decision that will continue to affect our lives for many years to come.

  2. I see some rationale for the statements by those like Senator Leahy's. Since beginning law school I agree judges of all levels should have some sort of "real-life experience" so they might better understand the implications of a ruling. However, I fully agree with Craig on this issue. I think that when it comes to judicial appointments, particularly federal and especially the Supreme Court, the appointee should have some sort of legal training and background.

  3. @ 9:29--

    To clarify, when I said "it may sound elitist," I was referring to my view that only a lawyer/person with a legal background should be selected.

    @ Justin D--

    Exactly. Couldn't agree more. If the nominee has an interesting background to contribute, great. But that's not a substitute for legal training.

  4. When you have to apologize for being elitist, its a safe bet you're being elitist. Why does someone need a law degree to do this work? They hire clerks who have the degree any way. This job should be filled by someone who knows the American people, because they are one of them. Get off your high horse.

  5. Yea dan, let's hire some nimrod without a law degree...and see how he/she handles the 90 + % of cases that don't involve "political" issues -- i.e., when the court gets some complicated civil procedure question.

  6. the trouble with "real world experience" being a criteria is that it means what the listener or speaker wants it to mean. Who defines that? My real world experience is undoubtedly different than the next guy's. Also, to those advocating a non-lawyer, maybe next time you go to the doctor you'd prefer a less elitist common man type? No, some tasks call for expertise.

  7. At the risk of putting foot in mouth -- I think the nominee will almost certainly be either Kagan or Sotomayor, with perhaps a miniscule edge to Kagan. Obama likes legal academics, and the solicitor generalship is a proving ground for future justices. He will weigh that against the legacy value of appointing a Hispanic justice.

  8. Why does someone need a law degree to do this work?For the same reason you wouldn't appoint a political hack to head the CDC or NIH -- the overwhelming majority of cases aren't policy-oriented, but involve highly technical issues.

    I do think Obama understands this; he appointed Chu as Energy Secretary over more political types, like Kathleen Sibelius.

  9. Dan-did you really expect a bunch of law students to realize that this job could be filled by someone without a law degree?

  10. It is essential a lawyer be the next Justice not just for the technical issues, but also the politically charged issues. A judge is merely supposed to interpret what the law says, not what they wish it said. Making policy decisions are for legislatures, not judges. Lawyers have enough trouble keeping their own politics out of the law, how is a non-lawyer going to do that?

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