Academic

So the Monday trial balloon is that Obama is thinking he should go "out of the box" and not nominate someone who is a sitting federal appellate judge.  Because there are too many on the Supreme Court already.  Let's all say this together:  There are too many Supreme Court Justices whose prior occupation was the one occupation that is closest in substance and form to the job of being a Supreme Court Justice.  Huh?

I just have to say that this meme not only doesn't resonate with me, it just seems silly.  (As an aside, Orin Kerr's post on the diversity of the Court is priceless, but that's not what I am championing here.)  For several reasons, most of which I will lump into two categories:  (1) The Qualifications Question and the (2) Compared to What question.  I guess there's also the (3) OK, So How Does That Work throw-away at the end.

(1) The Qualifications Question.  How you feel about this reasoning depends on what you think the job of the Supreme Court is.  I'm sort of old-fashioned, so I tend to think that a Supreme Court justice analyzes, interprets and applies federal law to the cases in front of it and also examines both federal and state laws in light of the U.S. constitution.  As a body, this is both the least and the most that it does.  So, I would tend to think that justices should be those who have shown some competence in doing these things.  So, the work of a federal appellate court judge is very close to this job description and in fact is the closest thing to this job description.  After that, you can imagine a spectrum of positions that are similar, but not as close.   State appellate judge, federal district court judge, state attorney general, federal attorney general, federal solicitor general, Supreme Court bar practitioner.  Throw in law professor somewhere. 

The two examples thrown out to show why the nonjudge justice is a great idea are former California governor Chief Justice Earl Warren and former Arizona state legislator Justice Sandra Day O'Connor.  However, note that Warren was the attorney general for California before he was governor and that O'Connor was a state appellate judge after being a state legislator.  Chief Justice William Rehnquist is cited as also being a nonjudge Justice; he was an assistant attorney general for the Office of Legal Counsel (the position to which Dawn Johnsen was nominated, in case you've been following that story).  So, these aren't really the politician/practitioner types one would think of as being completely out of the box, but admittedly not in the federal appellate judge mold.

However, I don't think mentioning a handful of names out of a larger handful of Supreme Court justices really makes a great scientific argument that nonjudges are better or even as good as the average justice.  Counting current judges, I think I counted 111 Supreme Court Justices.  This seems like a small number to work with to make good arguments about backgrounds that predict success on the court.  The theory that past successful judging, particularly federal judging, would predict Supreme Court success seems to rest on logic, if not on empirics.

(2) As Compared to What?  So, what past experience would be better?  If we think that just selecting those from the "judicial monastery" is short-sighted, why do we think that and what would be a better choice?  We must have a theory of why the judicial monastery is bad before we can figure out a better holding pen for Supreme Court justices.  One implication seems to be that the isolation of lifetime appointees makes them out-of-touch with how the world works -- not only not "empathetic," but possibly also unable to work as a team.  I'm not sure I like to think about the Court as a place where consensus positions are built and alliances formed, but I suppose having an isolated occupation might rule that out.  However, federal appellate court judges sit in panels and often en banc and must engage in whatever horse trading we think Supreme Court justices engage in.  This would lead us to think that politicians would be the best horse-trading justices, and that seems a little unpalatable to me.  Consensus builder, yes, professional horse-trader, maybe not.  It is the law we're talking about here.  So, professors would be too isolated (except for Deans, perhaps); politicians a little too un-isolated.

So who is the great out-of-the box candidate?  A Solicitor General?  An Ivy-League Dean?  A state Supreme Court justice or appellate court justice?  Is this really out-of-the-box?  Or are we just picking people that we think come really close to the ideal candidate without the obviousness of being a federal appellate court judge?

(3) OK, So How Does That Work?  And the reason that any out-of-the-box candidate will be as close to the box without going over as possible is because of our very stylized and strange confirmation process.  As we saw with Harriet Miers, very smart, competent legal minds can suddenly seem out of their environment when asked pointed jurisprudence questions during the process about topics that really don't come across most practitioners' desks.  So who will do well in these proceedings?  I would think federal appellate judges, con law professors, solicitors general, maybe some others.  If that's the prize Obama has to keep his eye on, then I doubt the nominee will be too far from the box. 

(4)  What About Diversity?  Diversity of qualifications seems to be a great way to get to unqualified pretty fast.  When I go to the hospital, I would prefer that all of my physicians be qualified in similar ways -- the highly qualified ways.  As Orin points out, the justices and short-list nominees are all similar in many ways -- education background, practice background, and for some judging background.  Instead of choosing Harvard and Yale J.D.'s from all walks of legal life, we could pick federal or appellate judges from all real walks of life.  (OK, I want Diane Wood (Texas alum) to get the nomination -- so sue me!)