Posted by Orin Kerr:
Reasons to Look Outside the Judiciary for Supreme Court Nominees:
http://volokh.com/archives/archive_2009_02_22-2009_02_28.shtml#1235766317
In the Chicago Tribune, lawprof Tim O'Neill [1]makes the case against
nominating another court of appeals judge to the Supreme Court. Oddly,
though, O'Neill doesn't seem to have an affirmative argument for what
nominating someone without prior judicial experience would actually
add. He suggests that the diversity of experience would add something,
but I don't think he says what that is.
We have blogged about this issue before, but I wanted to add a few
thoughts anyway. In my view, the argument that a President should
nominate someone to the Supreme Court who lacks experience in the
court of appeals to ensure "diversity of experience" doesn't make a
lot of sense. If typical Supreme Court nominees are 50 years old, and
have spent 5-10 years on the appellate bench, they will have spent
most of their lives doing something beyond filling up the Federal
Reporter. The will have been practicing lawyers, public interest
advocates, government officials, legislative staffers, academics, and
the like.
True, few federal judges have experience in public office, a lack of
experience that O'Neill finds troublesome. But then I'm not sure how
that's relevant. Take the case of former legislators, who I would
think are the most common type of former public officeholders who are
often considered for judgeships. What exactly is it that legislators
do that judges need to know? What does that experience teach that
jurists who have not been elected to public office suffer from not
knowing? Given the realities of work in Congress or state
legislatures, I'm not sure.
Perhaps the argument is that those who want former legislators to
become judges really don't want "diversity of experience," but rather
like it when judges act like legislators. That is, maybe a former
legislator is more likely to legislate from the bench -- an overused
term, but here I think an accurate one -- and some think that's a good
thing. Perhaps. But if so, I think that argument should be made
directly, not hidden behind an argument for "diversity."
None of this means that there are no arguments against nominating
court of appeals judges to the Supreme Court. I find one argument
pretty strong: The pool of appellate judges is just too small.
Here's my thinking. A Presidential term might see only about 35
confirmations of appellate judges. Of that group, fewer than ten are
likely to have the intelligence, personality, and work ethic to be
likely Supreme Court material. (Indeed, it's harder to get top court
of appeals nominees confirmed if it looks like they might be Supreme
Court material down the road.) If you cross out the judges who are too
old, are unconfirmable, or who don't want the job, the group gets
smaller still. As a result, if a President confines himself to sitting
judges, the "short list" starts off as very short indeed. By looking
outside the court of appeals for nominees, the President can vastly
expand the pool of possible candidates and likely find someone who
better matches his idea of an ideal candidate. I think that's the best
reason to look beyond the court of appeals, not the diversity of
experience of someone who has no experience in the federal judiciary.
References
1.
http://www.chicagotribune.com/news/chi-perspec0222courtfeb22,0,3377987.story
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