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Supreme Heresy

With all the fuss over Harriet Miers, a lot of people questioned whether a Supreme Court Justice should have had some judicial experience on their resume. Others immediately pointed out several justices -- including the recently-deceased Chief Justice William Rehnqust -- had been named to the High Court without having been a judge at a lower level.

That got me thinking: the Constitution gives absolutely NO requirements for the job of Supreme Court Justice. None. Zero. Nada. For Congress and the Presidency, they spell out conditions based on age, residency, and citizenship. But literally anyone could be on the Supreme Court. In theory, Bush could name Osama Bin Laden to the court -- and if the Senate approved, he could serve. (Although I think he might have problems taking the oath of office.)

So, if a justice doesn't have to have been a judge, do they even need to be a lawyer?

I think it could be worth considering. There are already eight lawyers on the High Court, discounting Justice O'Connor. And justices have a staff of law clerks who have legal training.

So, why not look outside the legal profession for a justice? Someone who can bring a fresh perspective to the bench? It might be beneficial.

So, outside of lawyers, who might be suitable for consideration? I have a few ideas.

* A historian, preferably one who has studied the Constitution and its creation and establishment, and has a fair grasp of "original intent," and can foresee the kinds of complications that can arise from Court decisions.

* A career military officer, someone who is used to making hard decisions and shouldering great responsibilities.

* An administrator or executive, someone proficient at overseeing large organizations and working with others.

I think it would be a great experiment. For example, I think Victor Davis Hanson would be an outstanding Supreme Court Justice.


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Comments (50)

I think VDH would be terrif... (Below threshold)
Rodney A Stanton:

I think VDH would be terrific! In the beginnig of America nonlawyers were nominated and approved. My guess is that all happened before the lawyers uinon aka Bar Ass was strong.

Oh goody, you're baiting me... (Below threshold)

Oh goody, you're baiting me aren't ya?

Ed (not ed), Bullwinkle, come out where ever you are!

One virtue of having lawyers on the bench, is that they have a lifetime of experience with concepts and laws that a non-lawyer, regardless of how brilliant he or she is, would require years to develop a comparable working familiarity. The justice needs this; they can't rely on their clerks for that.

Additionally, the decades of experience lawyers gain in translating highly complex, convoluted, legal principles and gobble de gook into clear and straight forward written opinions is a plus. Yes, any highly intelligent person with an articulate and disciplined writing style could do it, but in general, lawyers have a head start from sheer experience.

The constitution is not inc... (Below threshold)

The constitution is not incredibly complex. It was designed not to be. The only thing that makes it a bit of mystery is that we no longer have that 1770's dialect. That is relatively easy to surmount.

Plus there's a danger of a closed club mentality. typical Judges or Lawyers for that fact don't represent a cross-section of society. By restricting the bench, you've endorsed them in ignoring the rest of society.

"In the beginnig of America... (Below threshold)

"In the beginnig of America nonlawyers were nominated and approved."

Really? Name some.

George Washington used six criteria for selecting justices. One of them was prior judicial experience.

Yes, some judges in those days had not attended law school, but they learned their craft on the job. There was only one tiny law school in the colonies/states so most "lawyers" from the time had to get their legal training in Scotland, Ireland and England, or simply learn on the job like an apprentice.

Therefore, it's not fair to compare our early days with modern times. Today, anyone who scores above the 90th percentile on their LSAT and has an undergraduate GPA of 3.75 or better is likely to get into a middle-tier law school.

With the million or so active law licenses roaming the country, it would seem hard to justify not seating one on the Court.

Someone who knows and under... (Below threshold)

Someone who knows and understands the Constitution, former UN Ambassador: Alan Keyes.

OK, I can't believe I'm quo... (Below threshold)

OK, I can't believe I'm quoting Ann Coulter, but since she put this little list together I'm going to borrow it. I think people have a pretty simplistic idea of what a justice has to do. Every legal question doesn't come down to simply reading the constitution and deciding which side it comes down on. As Coulter said, justices are dealing with "ERISA pre-emption, the doctrine of equivalents in patent law, limitation of liability in admiralty, and supplemental jurisdiction under Section 1367." Do you really think someone is equipped to deal with these issues because they can write thoughtful essays? I realize the Right has a strong anti-lawyer bias (despite the incredible number of conservative lawyers; I've never figured that one out) but sometimes it's out of control. I guess I could me a movie star, too. I mean it's just memorizing lines. Or how about an NBA player? It's just throwing a ball through a little hoop, right?

"The constitution is not in... (Below threshold)

"The constitution is not incredibly complex. It was designed not to be."

Yeah. Right. OK, whatever you say.

Only someone who has never worked with it could say that.

Did ya happen to watch any of the John Roberts hearings? Have you ever seen the inside of a law library? Have you ever read a SCOTUS opinion? Were you watching here a few months ago when no fewer than 7 commenters claimed the Second Amendment is the most simple and obvious provision out there, and then each proceded to interpret it in 7 different and conflicting ways? Nope, no complexity whatsoever.

Chris:I was trying... (Below threshold)


I was trying to remember where I read that quote, because I wanted to post it here. Thanks!

Mark, I'm speaking of peopl... (Below threshold)
Jay Tea:

Mark, I'm speaking of people with demonstrated ability, intelligence, and a record of exceptional achievement -- just outside your little world. And by sighting the "gobbledygook," you're helping me make my point -- I've long contended that a great deal of that is to guarantee work for even more lawyers, and that strikes me as prima facie evidence of the need for reform.


<a href="http://porkopolis.... (Below threshold)
You're right Mark.... (Below threshold)

You're right Mark.

All hail the legal class! We are beneath them and their ability to read written English. We must submit to their rule or all is lost!

While no legal experience i... (Below threshold)

While no legal experience is required, I assume we want someone who has experience in the field.

I wrote a piece earlier today making the comparison between this and hiring a coach for a professional sports team. Sometimes a team reaches beyond the fraternity of coaches to lead the team, but is that what we want to happen for one of only nine SCOTUS seats? I think not and to say that someone who has no experience with constitutional law is the best person to be found begs the question as to what the review process entailed.

Jay says:"Mark, I'... (Below threshold)

Jay says:

"Mark, I'm speaking of people with demonstrated ability, intelligence, and a record of exceptional achievement -- just outside your little world."

Jay, I'm with ya here, as long as you include relevant experience. The law is humongus, convoluted, contractory, and much of it is seemingly hidden. There is no substitute for actually working with it 12 hours per day, six days per week, for 30 years. John Roberts is a brilliant man, but it's the daily diet of struggling with the system that prepared him for the Court.

"And by sighting the "gobbledygook," you're helping me make my point -- I've long contended that a great deal of that is to guarantee work for even more lawyers, and that strikes me as prima facie evidence of the need for reform."

Why do you think I used that term? ;-)

I disagree about the job security expanation for the complexity of law. The law is simply huge beyond comprehension, and it's web-like. Much of its complexity stems from the fact that everytime a new law is written or changed, it upsets or contradicts another portion on the web, whether past or present (yeah, the law is not only three dimentional, but it spans dimensions in time, as well). Because of our Federal system of government, and the commonlaw roots of our legal system, the beast is what it is. I can't comprehend, nor have I heard any suggestions by non-lawyers, a way to make the system easier.

Because of its vastness and complexity, specialized training and experience is neccessary just to nagivate and FIND the sets of laws needed to accomplish any certain legal task. It doesn't stop there, that's just the beginning.

I'm not saying we're superior to others. I'm just saying we're trained to use the system.

"All hail the legal class! ... (Below threshold)

"All hail the legal class! We are beneath them and their ability to read written English. We must submit to their rule or all is lost!"

I didn't read Mark's remarks as saying lawyers were above anybody. But I'm assuming he's a lwayer, and it's natural to react a little when you train for years to be good at a job and uninformed people try to tell you that anyone can do your job. And it's not a matter of being able to read written English. It's a matter of being able to read legalese. Appointing non-lawyers to the Supreme Court will have nothing to do with getting rid of "gobbledygook." It's the legislature that writes the laws in such arcane and confusing language. I'm not a lawyer and don't really have any connection with the law, but I imagine some of the gobbledygook is unnecessary and some is a result of having to use consistent terminology. The solution to simplifying the legal code isn't to put laymen on the Supreme Court. They're the last stop in the process.

jpm100"All hail th... (Below threshold)


"All hail the legal class! We are beneath them and their ability to read written English. We must submit to their rule or all is lost!"

Who said anything along those lines?

I can read medical text books (I do it all the time) but I'm not a physician or surgeon. Would you like me to operate on you?

I can read blueprints and schematics, but I'm not a licensed engineer. Would you like me to build your bridge?

I can read about aeronautics and I've flown small airplanes. Would you like me to land your 747?

It's not about reading--any 8th grader can do that. It's about specialized training and years of exhasting experience.

Upon the founding of this c... (Below threshold)

Upon the founding of this country, a great document was compiled... created, as it were, to be an entity to guide an enlightened and hopeful populace of normal folk. It was novel, it was malleable, and it was "living". So let's consider its organic nature for a moment and the best way to raise it as it ages.

Wouldn't the most capable legal minds be appropriate? If I want to keep something living, I'd prefer to place it in the hands of a general practitioner, a microbiologist, a physiologist, an immunologist, a cardiologist, a gastroenterologist, a you-name-it-ologist and I'd want the best in their respective field if possible. I would NOT place it in the hands of either an intern or a resident since, presumably, this is a rather important patient.

Now, we could break the mold and go to a more holistic practitioner - one who believes in voodoo, mysticism or any other non-traditional therapies, but would you really feel comfortable doing so? Remember that such pratitioners are human and are generally aware of organic things, but do not have the appropriate understanding of fundamental biology. They share the human experiences of everyone else, so presumably they would be "qualified".

Or, worse still, we could avoid the fundamentals altogether and select an actor, for example... one who is wholly inadequate for the mission we must accomplish, i.e. the caring of the patient, yet who appears on occasion to be like a healer.

Are the alternatives to the top specialists really the optimal path we should consider to keep this baby alive? I should hope not. Wouldn't it be most appropriate to let the best, most experienced, and most analytical legal minds handle this document's interpretation? This is not elitism as much as it is pragmatism. The document is stretched, pulled, and pushed in all directions because of our public pressure to change it whether we want to admit that or not. I figure experts who have had many years of practical and theoretical experience are best capable of separating the Constitutional wheat from the extralegal chaff. If they have different legal expertise in their backgrounds, as opposed to irrelevant (even if highly developed) resumes, then that would seem ideal.

The notion that just anybody can serve on the Supreme Court is laughable even though the Founding Fathers permitted such appointments. Their wisdom allowed for the potential of anybody, but I figure they had wise men in mind when they left it so open-ended. Of course, this is all open to interpretation.

So long as the cases before... (Below threshold)

So long as the cases before SCOTUS are argued by attorneys, attorneys need to be seated on the bench. I agree that the Constitution is simple enough that every citizen should be able to understand it (the piss-poor state of public education set aside for the moment), and "interpreting" the constitution needn't be beyond that basic understanding.

However (and this is a HUGE one), the language currently employed in debate regarding matters of Constitutionality is always "legal-ese," partially by necessity because of the inherent specificity of legal terminology. Part of the problem is the legal profession's success in elevating the realm of law beyond the understanding of laymen, in order to preserve their own livelihood. In a perfect world, general tenets would be enough. In our current society, however, where loopholes and obscure legal provisions are sought more fiercely than the Holy Grail, generality would be disastrous.

Yes, these problems are creations of an overly legalistic social system, but to argue that a non-attorney could successfully function on SCOTUS is a little naive.

Of course there is another possibility: if a layman were appointed to SCOTUS, then the attorneys before the court may be forced to "translate" their arguments into layman's terms. This would remove some of the mysterious stigma attached to SCOTUS rulings, and may expose some of the real-world implications of fairly obscure cases.

I still don't think it's a good idea, though.

One addendum to all of this... (Below threshold)

One addendum to all of this fear of elitism. The jurists are "normal folk" in addition to being highly trained experts. They have lived in the real world too, and are not so in the bubble that they remain oblivious. Any mature individual will share such basic commonalities with everyone else, and that cannot be disregarded.

Mark said:"the dec... (Below threshold)
B Moe:

Mark said:

"the decades of experience lawyers gain in translating highly complex, convoluted, legal principles and gobble de gook into clear and straight forward written opinions is a plus..."

ROFLMAO! And just where on earth would all that gobble de gook come from? Lawyers are nothing but pretentious foreign language translaters who love to argue.^^

AD:That was brilli... (Below threshold)


That was brilliant. Seriously, very well put.

I want to comment for a second on "legalese."

When you talk about "legalese," I suspect many of you are thinking about the horrible old school boilerplate contracts you can buy in book stores and make their way into your rental agreements, mortgages, wills and insurance contracts. Those things are unreadable and you're screwed if you miss a comma because tons of hidden meaning is lurking in the next line. They're a disgrace.

But that's not the way law is written or court opinions are expressed. Most laws and most opinions are written in plain English, with terms that any high school graduate should understand. Anybody can read the stuff, but using it is a different story.

The more difficult parts are determining when and to what sets of facts the laws apply. What are the exceptions, and where can you find them? Is there another law that supercedes the one you would like to use? What if one of your small facts changes, does that change the applicability of the law or transport the case to province of a different law? How do you find out? What if there are no laws directly on point, but there are two similar laws that could be applied to your facts by analogy; one helps you while one hurts you. How do you reconcile them and put them to effective use for your client? And that's just the beginning of the routine analysis on any given single issue. And issues are not presented singularly--every case has a cluster of dozens, if not hundreds, of issues that need to be considered by lawyers. Many are small house keeping issues, some are major. Without training and experience, a layperson could easily consume a week on even the most elementary housekeeping issues. This isn't about intellegence or reading ability, it's simply about training and experience.

I couldn't decide whether t... (Below threshold)

I couldn't decide whether to recommend a doctor who is also an actor, or an actor who plays a doctor. But considering what both the SCOTUS does and is, a lawyer who is also a doctor might be the best...

B Moe,I'll give yo... (Below threshold)

B Moe,

I'll give you "pretentious" and "love to argue," but that's as far as I'll go.

The "gobbledygook" was bait, and the rest results naturally from the nature of the system. Its not one of the better arguments to bash lawyers--in fact it's not one at all.

Mark,You sighted a... (Below threshold)


You sighted a physician, an engineer, and a pilot. However, those don't compare here. For one physicians and pilots need hand-eye co-ordination and the training of being there because books & pictures can't convey the actual physical experience well enough. They work with physical things of which their training can't convey. Engineers also try to approximate reality and need to learn when and where their apporoximations work.

The constitution is essentially virtual. It was conceived in the minds of men. There is no hand-eye co-ordination necessary.

But to extend your analogy, do you let your doctor tell you 100% whether you're sick or not. No, you find a new one when he's full of it. Do you let an engineer tell you 100% which car to buy? Do you let a pilot fly you to a destination of your choosing. Most of us don't. The roll of the Supreme Court is not entirely about execution. It's about choices and making the right ones. Sometimes the cure is worse than the disease and following the doctor's prescription is the wrong thing. When execution does matter, there's no shortage of legal assistants, lawyers, and books to consult.

If the Supreme Court was entirely about execution, you wouldn't have 3-4 rulings. You might ocassionally have 6-1 rullings and that would be it.

And when you restrict the court to your criteria, you have enforced the very elitism I originally posted about. No matter where they came from, certain professions will never truely be a cross-section of the country. They will have their own view on issues. For example, I'm sure the average Judge & Lawyer's view on tort reform is different from mine.

Further extend your criteria of only the extremely well trained should be allowed to have anything to do with the law, you must be advocating that Congress should only be taken from lawyers. After all they write & vote on laws. Only lawyers are the best qualified to do this. There's nothing preventing your argument from being applied to Congress or the President for that matter.

In fact, only people versed in the law should be allowed to vote. They'll be the best able to interpret the law. Anyone else is guessing.

Any system if ripe for abuse and corruption. Even the constitution, the courts and congress. The only thing that keeps things close to honest is that they aren't open to only a select few.

Me memememe. Put me on the ... (Below threshold)

Me memememe. Put me on the supreme court. They get paid good right? OH oh oh me meme.

Oh thats what you mean by meme.

Hey, put a comp sci person ... (Below threshold)

Hey, put a comp sci person on the supreme court, they would be perfect! After all, us comp sci types do nothing but deal with logic all day long. (if this, then that, except for that particular corner case, or ...)

After all, isn't comp sci just applied mathematics, which is also solidly grounded in logic?

Now, note that Meirs has a math degree *and* a law degree - does this make her doubly qualified than those poor Ivy league lawyers that have had no formal logic training?

Hmmm.If you nomina... (Below threshold)


If you nominate someone with no Constitutional law experience, then how would that person research the relevant texts? Would they be able to do so on their own? Or would they be utterly dependent upon their law clerks?

Would they be giving their own decisions? Or their law clerks?

How would they justify their decisions? Based on opinions of the law clerks? A semi-"because I said so"? Something else?

If the law clerk made a mistake, how could the justice catch it? If the justice isn't a lawyer, or has no law background, how could that justice effectively read and comprehend any of the issues surrounding Constitutional cases?

Frankly if you nominate someone who isn't experienced and knowledgeable about Constitutional law you're in effect putting someone on the bench who is already at a severe disadvantage.

I think Jay is on to someth... (Below threshold)

I think Jay is on to something. The microbiologist, molecular geneticist, nuclear physicist, mechanical engineer, etc. each have a focused level of technical and theorectial knowledge gleaned from intense specialized training which is in turn put to practical application. There is no need for most of us to worry the details of that knowledge. But in our society, I think everyone should be taught in the civics classes across our country a basic undertsanding of the operations of the government which includes some rudimnatry understanding of justice as spelled out by the constitution. OK, I'm already aware of the pathetic civics education our public schools are famous for providing. That's another story. Granted, in a free society such as ours the average guy does not go to work every day to write a bill that goes through Congress, or sits down in the morning and gets a security briefing over a cup of coffee or hears an argument related to constitutional law. And in theory any citizen of a proper age can become President, serve in Congress or become a Supreme Court justice. In reality, however, that just ain't gonna happen for most of us. But since those postions are in theory open to most of us, I agree with Jay that there are likely those exceptional individuals outside of the legal profession who are of sufficient erudition, keen insight and detached sense of fairness who could serve on the Supreme Court. This is likely a naive and idealistic stance on my part, but it does not seem incompatible with the spirit of our government as originally designed.

Re: "...I think people have... (Below threshold)

Re: "...I think people have a pretty simplistic idea of what a justice has to do...."

The law should serve us...not the other way around.

Our system of 'laws' is so complicated because we've forgotten to utilize one of the most important rules of society...The Golden Rule.

I agree re: The Golden Rule... (Below threshold)

I agree re: The Golden Rule.

Let's apply the Golden rule to the gay marriage issue, shall we?

"Yes, I could have been a ... (Below threshold)
John Lederer:

"Yes, I could have been a judge but I never had the Latin, never had the Latin for the judging, I just never had sufficient of it to get through the rigorous judging exams.
They're noted for their rigour. People came staggering out saying, 'My God, what a rigorous exam.'
And so I became a miner instead. A coal miner. I managed to get through the mining exams - they're not very rigorous, they only ask you one question, they say 'Who are you?', and I got seventy-five percent on that."

Peter Cook, Beyond the Fringe

jpm100:You're sill... (Below threshold)


You're silly and you missed my point because you're trying to.

Furthermore, your perceptions of law, the work of lawyers, and the work of our Supreme Court are very uninformed. In fact, the naivete of your comments exemplifies the need for hiring trained and experienced lawyers for the Court.

Returning to the Ann Coulter quote posted by Chris: "As Coulter said, justices are dealing with "ERISA pre-emption, the doctrine of equivalents in patent law, limitation of liability in admiralty, and supplemental jurisdiction under Section 1367." Can you, with not legal training, describe the full meaning and import of each of these items? Can you even find them in a law library? I don't care how brilliant you are, and how well you can read. Without the training, you would be worthless to anyone who needed you to analyze them and render a decision in any reasonable timeframe.

Jonathan and DaveD:

You know every lawyer has at least one degree in something other than law, and many are in the sciences. There are mathematicians, physicists, engineers, biologists, computer science geeks, whatever.


You bring up a great point. It takes most people about a year to reach the point where they can effectively find their way around a law library--and that is for basic research. About 5 years to become a whiz at it. Do we want a Justice who needs to be led around for his or her first few years?

Bush was looking for someon... (Below threshold)
Steve Crickmore:

Bush was looking for someone who share's his judicial philosophy ( and the added recommendation as having praised Bush as the most brilliant man she had ever met) What better person than someone a woman (diversity) who was in charge of the selection procedure (like Cheney for vice president) and their personal lawyer (loyalty) to boot. I suppose you could get someone outside the legal profession, but why would you risk that, when you are looking for a safe pair of hands in your own office, who has some familiarity with the law, particularly the Executive's branch interpretation of it.

Mark, answer my point about... (Below threshold)

Mark, answer my point about Congress. You're argument can be applied to Congress or tell me why it can't?

This is my simplistic opini... (Below threshold)

This is my simplistic opinion. If the law is so complicated that it takes 5 years to learn how to adequately research a given point to determine if it applies, then the law is too complicated.

I have always considered it a problem that we allow a self resticting oligarchy to determine the actual rule of law in our country. It is no wonder that we have judges legislating from the bench there is no one to stop them.

We perpetuate this in two ways.

First you can't be a judge unless you are a member of the bar. In most states (all?) you can't be a member of the bar unless you attend an approved law school. Who approves the law schools? The bar association. Nice little self perpetuating monopoly on the one thing that touches everybodies life.

Second, we allow the ultimate determination of what is and isn't legal to members of that same groups. We are a representative democracy, but
we have one big loophole. The courts. If congress passes and the president signs a law and 99.999999999% of the people agree with it, it just doent matter once 5 people representing 55% of a groups of .0000036% of the population at large disagrees. Once they have spoken thats it unless a constitutional amendment is passed or the court changes it's mind.

The amazing thing is corruption isn't rampant in the court house.

Given the way things have gone in the political sector though I am not holding my breath that our good luck will hold on that front.

jpm100:Frankly, I ... (Below threshold)


Frankly, I wish all members of Congress were lawyers because they would have an easier time actually writing the laws, and so people like Nancy Pelosi would understand what it is she does and avoid making asinine statements to the press proving she's a moron. But that's not necessary.

The work of congressmen is different from lawyers and judges. Congressional work is political, and their job is to make policy decisions. They have staffs of lawyers who cobble their rarely coherent political thoughts into semi-coherent legislation.

Conversely, Judges spend much of their days and nights in law libraries, even though they also have staffs of clerks to assist. Judges are required to handle an extremely wide variety of legal issues every day, and they need their years of legal background to quickly understand and organize all the issues. Their job involves much more intensive legal work than that of Congress.

How many bills does a member of congress personally scrutinize in a year? A judge deals intensively with as many laws in a week, if not a day, in their research. The volume of opinions written by a Judge each week vastly outnumbers the number of bills written by any one member of congress in a year. And the precision required of a judge is, well, there's simply no comparison to the legislature.

I know judges. Some are personal friends, but most I know professionally. I have argued motions or tried cases before probably thousands of different judges around the country (about half of my career was national in scope). I know the intellectual and time demands on them. The brighter and better prepared jurists are the best, even though they sometimes make bad decisions. The duller, undertrained ones are a nightmare, even if they occasionally get the job done right--and the process is excruciating. I have been before a few elected non-lawyer judges in lower courts of some states, and it's just a fucking nightmare.

I'm also familiar with congress. A good friend of my ex-wife and mine when I was in law school is now sitting in her (third?) term of congress. She was an art history major at USC and cocktail waitress at a bar off campus until she started dating an older restauranteur in 1984. He was retired from a cheesy singing career. They got married, closed the restaurant, moved to Palm Springs where he became Mayor. He was elected to the House of Representatives where he served well until a tree took him out in February 1998. Our party girl took his place and she's been re-elected several times. How's that for a resume??? Yet she is doing well without any legal training, because her job does not involve a steady diet of direct legal eagle work.

Just sayin' the jobs demand different skills.

Chad,You sound a l... (Below threshold)


You sound a little paranoid.

The legal profession is not some dark mysterious super secret society open only to a chosen few who know the secret handshake. Anybody with the undergraduate grades and reasoning ability good enough to enter any post-graduate professional school could also choose to attend law school instead. Some of us choose to do it because we think we have the aptitude, many of you choose not to go that route. But the system is open to anyone who cares enough about legal issues and is willing to train for a while.

Also, if you read my comment, I didn't say it took 5 years to research a given point. I said it takes about 5 years to be a whiz at it, and you keep getting better with experience. Being a whiz is necessary because in the life of a lawyer or a judge, there is never enough time. Individual lawyers typically handle a caseload of about 100 cases at any given time. Judges run 40 or 50 cases through their courtrooms every single morning before 10:30 or 11:00 a.m. -- and that's just law and motion work before they spend the rest of the day presiding over trials. The nature of the business in general is fast paced and high volume, with strict time limitations. If something needs extensive pondering, that occurs after 6:00 p.m. until exhaustion forces you home, then you resume at 3:30 or 4:00 a.m. before court the next day. This applies to both judges and lawyers. Therefore, the need to either know, or be able to find the stuff immediately, is crucial.

The appellate courts handle fewer cases, and the SCOTUS even fewer. However the need for exhaustive research and precision is greater. They are under similar time crunches, and there is never enough time. Appellate justices and even SCOTUS justices with helfty teams of clerks, spend long nights in the library, and at home with boxes of materials trailing from their home offices to the dining room, to the bathroom and even the TV room. And, most likely they're even reading while they drive to and from work (but don't tell anyone).

So, if the superstars of law nerd-dome barely keep up with the demands, explain how well the non-trained will perform.

Two pointsThe firs... (Below threshold)

Two points

The first is that too many of the learned lawyers that have been on the bench for the last 20-40 years have failed in their fundamental reading of the Constitution. (Rowe-Kelo-McCain Feingold-quotas in Michigan etc.) Many have spoken of using foreign law, creating law to solve social injustice, and just plain creating law themselves!

I also believe that lawyers make poor lawmakers, as there exists a conflict of interest perhaps, but God knows we need a different mind set now and then. Lawyers can sit as advisors to other lawmakers. Why should they dominate a process that too often favors their profession. The millions of laws merely attest to their many failures. 22,000 gun laws on the books in 1963.

RE: Mark's post (October 9,... (Below threshold)

RE: Mark's post (October 9, 2005 03:56 PM)
That was brilliant. Seriously, very well put.

You're too kind. You know what they say about a million monkeys on a million typewriters and a million years... today, I'm the freaky monkey.

RE: chad's post (October 9, 2005 09:04 PM)
I have always considered it a problem that we allow a self resticting oligarchy to determine the actual rule of law in our country. It is no wonder that we have judges legislating from the bench there is no one to stop them.

In many ways I agree with this; however, I always have one major reservation about the sentiment that often remains overlooked, if not ignored. The Legislative branch creates non-specific laws intentionally too. Its members, being highly susceptible to contemporaneous politics, produce laws of compromise and purposeful loopholes. The idea is to further the perception that an issue was resolved when, in actuality, they are kicking the can or creating avenues of manipulation for a more convenient time. They do NOT want a decisive opinion so that a) they can reach a compromise with the other side of the aisle to appease an agitated public via passable legislation, and b) to remain somewhat uncommitted should the political atmosphere change. While some judges abuse their power, so too do congresspersons when they flaccidly wield their own. Nebulous laws allow them to proclaim credit, avoid blame, and push responsibility or the projection of an excess of it on to the Judicial. It's an imperfect system of interplay that continuously mutates whether we want it to or not. Most of the time, we seem to want it too.

Now, if we were to clean things up to simplify, we could abolish stare decisis and start over with a fresh legal code. I guarantee no one would want to see that happen though. Like taxes, we create the code that defines them because we all want something from it. It's the nature of the beast, so let's prepare and appoint the best slayers we can find.

'Just sayin' the jobs deman... (Below threshold)

'Just sayin' the jobs demand different skills.'

And I'm sure the Supreme Court is just a run of the mill courtroom.

And skill is not the point I've made. If it was skill alone, dissenting opinions would be rare and 5-4 decisions would be non-existent. Since there are often close decisions, there is something else that goes one besides execution of skill.

The only other explanation is that the law has become so unwieldly that its impossible for two people to arrive at a common conclusion. In which case its time for a melt and repour.

Oh goody, you're baiting... (Below threshold)

Oh goody, you're baiting me aren't ya?

I think in the correct word is "chumming." ;-)

Mark,It isn't that... (Below threshold)


It isn't that I am paranoid. I know that most lawyers are decent people trying to do the right thing, but that concentration of power in too small a group of people is almost always bad. My post probably sounds a little more cynical than it should because I had been reading Arlen Specter's twaddle it wasnt meant that way.

jpm100You're on to... (Below threshold)


You're on to something here.

"Since there are often close decisions, there is something else that goes one besides execution of skill."

You're exactly right. But the process requires great skill on the part of each Justice just to rise to a disagreement.

"The only other explanation is that the law has become so unwieldly that its impossible for two people to arrive at a common conclusion. In which case its time for a melt and repour."

In some aspects of law, I think you're right.

Out of the dozens or hundreds of issues each practicioner deals with every day, there are at least a handful where, if you ask five colleagues who are on the same side as you, you'll get four different answers. These are the types of issues that ultimately rise to the top state courts or the SCOTUS. Even with perfectly neutral minds, you're gonna have some disagreement. Throw in some political bias and you have a nightmare.

The problem is that law is rarely black and white. Despite the gazillions of laws and cases on the books, they do not cover most real-world fact situations. That would be impossibe. People say, "anything's possible," but that is not. There ain't enough trees to cut down to print hard copies, and there ain't enough electrons to store the information electronically.

Most real world cases fall somewhere between the legal cracks, and it's up to lawyers to argue why certain laws should either be extended to the new facts by analogy, or why they should not apply. Deciding those daily questions is the primary responsibiliity of the judiciary. It's far from a precise science, and differences of opinion are going to exist--even if it were not an adversarial system.

One thing I've heard frequently around here is, "if the so-called geniuses on the Court can't agree, how could we do worse using lay people?" Please don't say that, or I'll puke.

Jay's got some support from... (Below threshold)

Jay's got some support from other bloggers, including some I respect (but I respectfully think some are full of crap at the moment).

First, there's Hugh Hewitt here:


Then there's Orin Kerr who says Hewitt has drastically changed his tune since the Terry Schaivo days, here:


Of course, there's Ann Coulter who reminds us that the SCOTUS deals with many more issues than the relatively few socially-charged constitutional issues that capture your attention, here:


Finally, there's John Hinderaker who may have fallen off his rocker here:


Both Hinderaker and Hewitt baffle me at the moment. I can only assume they're saying whatever they need to support Miers for ideological benefits they predict conservatives will receive. Notice their analysis is limited to Con. Law, and Hinderaker's blathering about the Bill of Rights is ridiculously simplistic and extremely misleading.

Read Hinderaker's rant about judicial activism in the context of abortion. Recall his reasoning, but then consider a different aspect of civil rights that does not involve abortion. The 14th Amendment says, in part, the following:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . . nor deny to any person within its jurisdiction the equal protection of the laws."

Now, courts and the SCOTUS have developed a series of restrictions and hoops through which "equal protection" cases must pass. As people discussed on the gay marriage thread yesterday, classes are narrowly defined, some are disfavored, state interests must be articulated, etc. These were favored by people who seem to want "strict constructionists" on the bench. But none of that exists in the Constitution! Those requirements constrict the universe of classes and circumstances in which "equal protection" is afforded, and they were made up by courts.

Using Hinderaker's meme, show me where any of those restrictions are written? Where in the Constitution does it say that? Now compare those complicated and convoluted court-made prerequisites to the plain language of the Constitution: "nor deny to ANY PERSON within its jurisdiction the EQUAL protection of the laws."

Taking the Constitution at face value, it would seem every person is entitled to equal protection, regardless of whether they belong to some favored class. Yet I suspect Hinderaker would support the historical restrictions and denounce application of the plain meaning as some type of activism. Why? It serves his conservative agenda and audience. He's being an advocate.

I'm not saying I disfavor the court-made restrictions because I don't--they make sense for a lot of reasons. I'm just trying to point out his extreme hypocrisy and silly advocacy. He's well-educated and I assume his work experience is rich and relevant. I generally agree with his writings, but today I think he's fucking with his readers.

I'm sure YMMV.

I am a lawyer also and I th... (Below threshold)

I am a lawyer also and I think Mark is just arguing the "guild" position. Lawyering and judging can deal with very difficult and complex subjects. However, most of it is pretty simply (yes, I'm commiting heresy)applying reasoning to facts.

No one lawyer is an expert in every topic. The topics Coulter mentions for instance. They are all different specialities. No one is an expert in more than one of those areas. No one on the Supreme Court knows anything about ERISA.

There are some technical considerations in the law that would make it rough on a non-lawyer. But frankly, those things are the easiest to master.

Lawyers totally control one branch of the government (plus have a hugh influence on the other two branches). We like it that way of course. It does not necessary mean it is the best way.

Bob said:"I am a l... (Below threshold)

Bob said:

"I am a lawyer also and I think Mark is just arguing the "guild" position. Lawyering and judging can deal with very difficult and complex subjects. However, most of it is pretty simply (yes, I'm commiting heresy)applying reasoning to facts."

Well, I gotta argue--it's my nature.

I agree with what you said there, but the "pretty simply applying reasoning to facts" is only simplified to that level once you sift through the law. The more experience a lawyer or a judge has, the simpler the task becomes. I don't know your level of experience, but compare where you are now to where you were your first year of law school. Simple tasks you were given half a semester to do then, you probably do 10 times each day now. Also comprare your present competence to your first year as an associate--same deal. The simplification comes with experience in most instances.

"Lawyers totally control one branch of the government (plus have a hugh influence on the other two branches). We like it that way of course."

You make it sound like lawyers are some homogenous, cohesive group. Yet we are just ordinary people with widely varied backgrounds and interests. And, we tend to fight amongst ourselves rather than band together toward any cause. The only thing we have in common is a few years training and experience.

"It does not necessary mean it is the best way."

What's your solution? Can you think of a better way?

Another response to Hewitt ... (Below threshold)

Another response to Hewitt here:


The whole rant is good, but this paragraph is most relevevant to Jay's question:

"OK, Hugh, I get it. It doesn't take a rocket scientist to be a Supreme Court judge. Here is my question then -- why not me? Why don't I get a slot? If all we need is President Bush to get somebody to rule the way he wants then I could do it. I could get up there, put on my stylish robe and do Bush's bidding. My law experience is limited to watching a few episodes of The Practice. Still, I'm capable of sitting up there, looking somber and leaning over to Scalia and saying "hey bro, which way are you going to go on this one?" Here is the problem with that idea -- most people realize that it is just inherently wrong. They realize it is inherently wrong for somebody like me to sit in that chair when other folks have put in long nights brushing up on constitutional law. They paid their dues and I didn't. If you would realize that instead of just calling people "elitists" this whole opposition thing might make sense to you. Even though it is a reality, people still inherently hate when somebody gets a job because of who they know vice their qualifications. Why is this such a hard concept for you to understand? People see Miers get the Supreme Court slot and it reminds them of when they played Little League baseball and didn't get to pitch because the coach's son got the slot even though he wasn't as good."

I think another element peo... (Below threshold)

I think another element people are ignoring is the fact that many of the cases the SCOTUS hears have nothing to do with individual rights. People tend to focus on the high profile cases they read about, and think "I should be able to carry a gun. People shouldn't be admitted to college based on race. How hard is that?" What people are ignoring when they say the legal code is too complex is that we live in an incrediblty complex society, much more so than when the framers lived. Our economy is a web of conflicting rights and interests, and many of the cases in our courts are business cases (it's my understanding that the vast majority of lawsuits are businesses suing each other.)They're not all about whether Joe Blow is getting his rights abused or not.

Well, here you go: <a href... (Below threshold)

Well, here you go: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=04-8384

That's the first written opinion of the Roberts Court. It is a pretty simple and obvious case, at least from the way it was written (obviously I haven't seen the reams of material presented to the Court from both sides). There's nothing earth-shattering here, in fact it's unanimous. So read it. Every word and abbreviation and punctuation mark has meaning. Pretend you, as a non-lawyer, were sitting on the Court during your first week as a Justice. Be realistic and honest. Would you, as a non-lawyer, have been able to sort that out and write it? Would you be up to the job immediately?

Just curious.

Create a closed club and th... (Below threshold)

Create a closed club and they will begin to consider themselves above the rest of us.

You might as well take the vote away from everyone but lawyers.

As for the Harriet Myers thing. People didn't like her as a nominee because she seemed too much of an unknown and Conservatives didn't want to see Bush II repeat Bush I's Souter appointment fiasco.

I wish I could blame postin... (Below threshold)

I wish I could blame posting in an ancient thread on Alcohol. I can't. I don't know exactly how I got here or how I missed it was that old. I blame too much TV. Yeah, that's the ticket.






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