Senators: Pick next justice from outside judiciary

[The Spartan]

Yahoo news

Senators: Pick next justice from outside judiciary
By DOUGLASS K. DANIEL, Associated Press Writer Douglass K. Daniel, Associated Press Writer 2 hrs 9 mins ago

WASHINGTON – President Barack Obama's search to replace retiring Supreme Court Justice David Souter should extend beyond the current roster of federal judges, senators from both political parties said Sunday.

"I would like to see more people from outside the judicial monastery, somebody who has had some real-life experience, not just as a judge," said Vermont Sen. Patrick Leahy, chairman of the Senate Judiciary Committee that will hold hearings when Obama makes his nomination.

Noting that all nine justices came directly from the federal appeals court, senators on the committee said someone with a wider breadth of experience would be a plus.

When he was discussing the qualities he would seek in Souter's successor, Obama said last week he wanted someone with empathy for average Americans. Conservatives fear that means the president would consider "judicial activists" for the seat.

Leahy said he expects the next justice to be confirmed by the court's new term in October and that the president will consult with lawmakers from both parties.

"I would like to see, certainly, more women on the court. Having only one woman on the Supreme Court does not reflect the makeup of the United States. I think we should have more women. We should have more minorities," Leahy said.

Sen. Arlen Specter of Pennsylvania, a committee member who last week switched from the Republican to the Democratic Party, suggested someone in the mold of a statesman or stateswoman, and said he could imagine a nominee who was not a lawyer, if that a person had the right credentials.

"I would like to see somebody with broader experience," Specter said. "We have a very diverse country. We need more people to express a woman's point of view or a minority point of view, Hispanic or African American ... somebody who's done something more than wear a black robe for most of their lives."

Obama said Friday he would nominate a person who combines "empathy and understanding" with an impeccable legal background "who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives."

Utah Sen. Orrin Hatch, a senior Republican on the Judiciary Committee, said he hopes Obama will choose someone of "great dimension." At the same time, he said that Obama's criteria raise concern and he contended that the president says he will select a nominee according to that person's politics, feelings and preferences.

"Those are all code words for an activist judge, who is going to, you know, be partisan on the bench," Hatch said.

"We all know he's going to pick a more liberal justice. Their side will make sure that it's a pro-abortion justice. I don't think anybody has any illusions about that," he said. "The question is, are they qualified? Are they going to be people who will be fair to the rich, the poor, the weak, the strong, the sick, the disabled."

Sen. Richard Shelby, an Alabama Republican who is not on the committee, said empathy should be only part of the criteria for a nominee and that a justice should follow the law, not make it.

"But if he will appoint a pragmatist, someone who is not an ideologue ... I think that would be good for the country," Shelby said.

Although Shelby noted that Obama voted against the two most recent nominees to the court — Chief Justice John Roberts and Justice Samuel Alito, both conservatives picked by President George W. Bush — he said he would not seek "payback" in considering Obama's nominee.

Shelby spoke on CNN's "State of the Union" while Leahy and Hatch appeared on ABC's "This Week." Specter spoke on CBS' "Face the Nation."

I'm puzzled. I can't really imagine someone, in this day and age, who is not a judge sitting on the Supreme Court. And of course the Republicans trot out the activist judge label again. Never gets old.

[General Zod]

Didn't Bush try some bullshit stunt like this a few years ago when picking some Justices and get shot down for it?

[The Spartan]

Didn't Bush try some bullshit stunt like this a few years ago when picking some Justices and get shot down for it?

Harriet Myers, his legal counsel.

[Mr Bean]

Harriet Myers, his legal counsel.

Correction
Harriet Myers, his personal secretary who happen to have a law degree.
She was until 1994 (Roughly)a fine private practice lawyer, who sat on a few boards and was part of several things, but around 1993-1994 she became in essence a personal confidant of Bush II as he was Governor in Texas then later served as "legal council" for him when he was President. The biographies I read mention her as Bush personal secondary goofer and would often be taken along to record notes and remind Bush of things he had forgotten. She was in essence a all around filler even if her job title was "Legal Counsel"


Lets think back over the last eight years... yeah... we know how useful or advise was.
And he put her up for the Supreme Court.

[Edi]

The whole idea that a Supreme Court judge could be qualified for the job without prior experience on the bench in some court (which requires a law degree unless we're talking about the kind of elected judges that exist in some states) is completely ridiculous. Given the US political process, this is the same asking to fill the position with a political ideologue regardless of even nominal qualifications.

The idea is fucking moronic.

[Patrick Degan]

Former president William Howard Taft, who was nominated as Chief Justice by President Warren G. Harding in 1921, was not a sitting judge at the time nor had not been for a good stretch of years up to that point. Taft had been an appellate judge prior to 1900 and, after his presidency, was a law professor at Yale and president of the American Bar Association. Thurgood Marshall was Solicitor General of the United States in the Lyndon Johnson administration at the time of his appointment to the Court, but had been an appellate judge two years prior to that. Marshall had also, before that judgeship, served as chief counsel for the NAACP and was most famous for having argued Brown v. Topeka Board of Education before the Supreme Court.

[Prannon]

Looking back at the article, I think both parties are primarily interested in getting someone who isn't part of the Federal Appeals Circuit, and perhaps has some broader experiences. It's not bad that the nominee would be a judge, but they don't want someone who's been working as a career guy from the beginning. Some of this reeks of populism because of the public's recent backlash against Wall Street, The Executives, The Establishment, and Big Bonuses, but I don't necessarily think that a judge with a "well rounded" point of view would be a bad thing. Consider that the SCOTUS has to consider cases with broad social consequences sometimes.

The whole idea that a Supreme Court judge could be qualified for the job without prior experience on the bench in some court (which requires a law degree unless we're talking about the kind of elected judges that exist in some states) is completely ridiculous. Given the US political process, this is the same asking to fill the position with a political ideologue regardless of even nominal qualifications.

The idea is fucking moronic.

Fortunately, Obama himself said that he'd pick someone "with an impeccable legal background" along with all the empathy/broader experience blablabla stuff. No telling who that'd be right now, but when he eventually does nominate someone we'll see just how sincere his rhetoric is, as well as how much credence he puts in what the Senators say.

[Edi]

Hmm, somehow missed that Obama quote. In any case, I did mean that a candidate should have a legal profession background and experience on the bench, but not that they should necessarily be a sitting judge, as per Degan's example.

Specter's comment about "choosing someone who is not a lawyer" was the one that most stuck in my mind.

[Thanas]

Sadly, it is pretty much impossible to figure out how one thinks on a subject without reading decisions (unless they are a law professor who has written many case reviews).

[Andrew J.]

Supreme Court nominees being drawn primarily from federal benches is actually a relatively recent phenomenon.

Obama Has Chance to Select Justice With Varied Résumé
By ADAM LIPTAK

WASHINGTON — The current Supreme Court, made up entirely of former federal appeals court judges, is in some ways the most insulated and homogenous in American history.

None of the justices have held elective office. All but one attended law school at Harvard or Yale. And the only three justices in American history who never worked in private practice are on the current court.

His reputation for reclusiveness notwithstanding, Justice David H. Souter brought real-world experience to the court, having served as a trial judge in New Hampshire and as the state’s attorney general. No other justice has either sort of experience.

Justice Souter’s departure thus presents President Obama with more than the usual array of choices based on credentials, ideology and demographics. Mr. Obama also has the opportunity to move the court back toward what it has been for most of its history: a collection of prominent individuals with broad experience.

“Diversity of inputs makes for stronger outputs,” said Lee Epstein, a law professor at Northwestern University and an authority on the court. “Diversity has become a term for race and gender, but it also applies to career experience and background.”

Until recently, Supreme Court justices were often former legislators, governors, cabinet members, law professors and practicing lawyers. Justice Souter, who surprised his conservative patrons with his generally liberal votes, bears some of the blame for the emergence of what scholars call the norm of prior judicial experience.

Justice Souter’s paper trail on the New Hampshire Supreme Court failed to illuminate his views on questions like abortion and race, and he served for only three months on the federal appeals court in Boston before President George Bush named him to the United States Supreme Court in 1990.

Wary of taking such risks, presidents since then have turned to candidates with substantial track records on the federal appeals courts and in the executive branch. The withdrawn nomination in 2005 of Harriet E. Miers, who was not a judge, is an exception that proved this rule.

During the campaign last year, Mr. Obama said he would consider candidates with practical political experience, pointing to Earl Warren, who was governor of California before he became chief justice in 1953. The Warren Court was a golden age for liberals, and the chief justice’s political skills helped unify the court.

That sort of thinking might argue in favor of candidates like Gov. Jennifer M. Granholm of Michigan, Gov. Deval Patrick of Massachusetts and Janet Napolitano, the homeland security secretary and a former governor of Arizona.

The current court is the first to be made up entirely of former federal appeals court judges. And only a few of those appeals courts at that: seven of the justices served on what might be called the court of appeals for the Acela circuit, in Boston, Philadelphia and Washington. (The exceptions are Justices John Paul Stevens, who served in Chicago, and Anthony M. Kennedy, who served in California.)

“It would be terrific to see someone from outside the Washington-Cambridge-New Haven corridor,” said Timothy P. O’Neill, a law professor at the John Marshall Law School in Chicago.

Professor Epstein said there was evidence that the Supreme Court had treated lower court decisions from the Northeast with more deference. “There seems to be an Eastern-Northern bias on the court,” she said.

As late as 1972, when William H. Rehnquist joined the court as an associate justice, former federal judges were in the minority. Before the presidency of Dwight D. Eisenhower, about a third of the nominations to the Supreme Court went to sitting judges. Since 1953, more than two-thirds have.

In 1946, for instance, eight of the nine justices had not been sitting judges when they were appointed, Professor O’Neill wrote in a 2007 article in The Oklahoma Law Review criticizing the current uniformity of the backgrounds on the court. The article was called “The Stepford Justices.”

The justices who sat in 1946, by contrast, included two former attorneys general, two senators, a Treasury secretary, a chairman of the Securities and Exchange Commission and a law professor.

Tracey E. George, a law professor at Vanderbilt, said the most important gap on the court today was in former lawmakers.

Justice Stephen G. Breyer did serve as counsel to the Senate Judiciary Committee, and that experience has plainly affected his approach to the interpretation of statutes, one influenced by a deep understanding of the way laws are made.

Similarly, Justice Souter’s practical experience as a trial judge has informed his understanding of the workings of the justice system. His voting grew more liberal with time, perhaps as a consequence of exposure to imperfections in state criminal justice systems.

“If he had stayed as conservative as when he started,” Professor Epstein said, “he’d be to the right of Kennedy.” Justice Kennedy is the court’s swing vote these days.

By the measures used by political scientists, Justice Souter is the most centrist of the four members of the court’s liberal wing. Put another way, he is the least liberal of the three justices widely viewed as likely to depart in the next few years.

The other two are Justice Ruth Bader Ginsburg, who recently underwent surgery for pancreatic cancer, and Justice Stevens, who is 89.

In voting against the nomination of Chief Justice John G. Roberts Jr. as a senator, Mr. Obama said that “adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon.”

Mr. Obama, a former professor of constitutional law who retains a fascination with the court, said that what concerned him most was the last mile, one that must take account of “broader perspectives on how the world works.”

That said, Mr. Obama’s first three appeals court nominations went to sitting judges. “He could not have been more cautious,” Professor George said.

Link to article.

[Darth Wong]

I would tend to think that the ideal judge is someone who knows the law but who also knows the kind of people who would be affected by his rulings. And by "affected", I mean "have their own lives affected", not "get angry because they don't get their way".

[Sea Skimmer]

Notice how it specifics outside the Federal Judiciary, the vast majority of US judges are not in the federal system. This is not necessarily a call for someone with no experience at all. The ideal pick would be someone who has experience as a judge, but only recently. You’re going to find those people in state and local systems far more then the federal system which heavily favors long term career judges who know the law (and the politics of advancement) but not much else.

[TC Pilot]

Former president William Howard Taft, who was nominated as Chief Justice by President Warren G. Harding in 1921, was not a sitting judge at the time nor had not been for a good stretch of years up to that point. Taft had been an appellate judge prior to 1900 and, after his presidency, was a law professor at Yale and president of the American Bar Association. Thurgood Marshall was Solicitor General of the United States in the Lyndon Johnson administration at the time of his appointment to the Court, but had been an appellate judge two years prior to that. Marshall had also, before that judgeship, served as chief counsel for the NAACP and was most famous for having argued Brown v. Topeka Board of Education before the Supreme Court.

You can add John Marshall to that list. As far as I know, he never served as a judge before his appointment to the Supreme Court, though he did have a law background.

[Cecelia5578]

Or, rather, the current trend is for Federal Appellate judges, specifically.

Famed Nuremburg prosecutor and Supreme Court justice Robert Jackson was never a state or federal judge (though he had a ton of other legal appointments as well), and never graduated from law school (but was a bona fide lawyer who had been admitted to the bar).

Former Chief Justice Harlan Fiske Stone had also never been a judge at any level before arriving at the Supreme Court-you don't need to go back 200 years to Marshall to find justices who arrived on the court with no experience on the bench.

David Souter is the only current Supreme Court justice who has ever been a trial judge (New Hampshire Superior Court). I don't think that speaks well for the experience the other justices bring to the table.

I think that, historically, being a judge at any level shouldn't be a prerequisite to be a Supreme Court justice, as there have been plenty of justices who have held other important positions in the legal system as well. Quite frankly, given how terribly complex and overwhelming the law can be, no single person will ever have total experience and knowledge about every facet of the law-if they say they do, then they are bullshitting. Law professors, judges, prosecutors-heck, it'd be helpful to have prior political experience as well-its all important to make the Supreme Court a truly diverse institution in terms of the experiences of its sitting judges.

[Cecelia5578]

Notice how it specifics outside the Federal Judiciary, the vast majority of US judges are not in the federal system. This is not necessarily a call for someone with no experience at all. The ideal pick would be someone who has experience as a judge, but only recently. You’re going to find those people in state and local systems far more then the federal system which heavily favors long term career judges who know the law (and the politics of advancement) but not much else.

The problem with that is that is that there are lots of areas of law in which state courts of appeal and supreme courts don't go near that the Supreme Court does, and which it'd be more helpful to have experience at the federal level (even as a DA or AG).