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Democratic Supreme Court Picks?

By pharrell

Being at Yale, there's a certain (self serving?) presumption on the part of the students and faculty that a Democratic president would appoint legal academics or federal judges to the Supreme Court, should any vacancies arise. Yet at last Thursday's debate, several of the Democrats actually seeking the presidency suggested that they want Justices who come from the outside the insular worlds of the academy and the bench.

"We have enough professors on the bench," said Joe Biden, in response to a question about Supreme Court preferences. "I want someone who ran for dog catcher. I want someone -- literally, not a joke...who, in fact, knew what it was to live life. Knew what it was -- not as some intellectual feat." A few minutes later, Sen. Obama--a former law professor himself--echoed those sentiments. "Joe's exactly right. Sometimes we're only looking at academics or people who've been in the courts. If we can find people who have life experience, and they understand what it means to be on the outside, what it means to have the system not work for them, that's the kind of person I want on the Supreme Court." Clinton focused most of her answer on the need to appoint justices who believe in a constitutional rights to privacy, but she, too, suggested that she may share Biden's sentiments. "I just want to say, Senator Biden really deserves a lot of plaudits because he knows this issue forwards and backwards...."

The Supreme Court could use more of this professional diversity. All nine of the current Justices served in the federal appellate courts before being elevated to the nation's highest Court, and a majority of them have held either full or part-time professorships during the course of their careers. Gerald Ford was the last president to appoint a justice with no prior judicial experience, William Rehnquist, who spent many years in private practice in Arizona and three years as a senior Justice Department official in Washington before being named to the Court.

While judges and academics have always been well represented, their overwhelming dominance on the Supreme Court is a modern phenomenon. Prior to the 1970s, presidents regularly appointed politicians and private practitioners, practical people who could temper the intellectual theories of the academy with a dose of real world experience. The perspective that comes from this type of experience--an understanding of the problems people face, the mistakes they make, and the unintended consequences of judicial decisions on human lives--is a valuable one to have on the Court, which can be all too isolated from the humdrum of daily life. Law is not only about theory; it is about practical rules for everyday life. In seminal cases, it is also about interpreting the deepest values of the nation. Comprehending these--rules and values--require life experience as much as academic learning. Lets hope that the next Democratic president will keep that in mind when he or she names the next Justice.

Full post as published by Harrell Blog on November 19, 2007 (boomark / email).