Is "Business Litigation" a "Background in Business Law?"

Note: The initial version of this post mistakenly attributed the post I discuss below to Brian Tamanaha rather than to Bernard Harcourt.  My apologies!  I've revised it accordingly.

Anent the Sotomayor nomination, natch, Bernard Harcourt has an interesting and impassioned post at Balkinization taking David Frum to task for arguing that Sotomayor has only an "abstract and academic" experience of business law.  Frum describes Sotomayor (and other Justices) as having a background only in "academia and government," and laments this as the general state of the current Supreme Court's experience.  Harcourt points out that Sotomayor spent eight years as a business litigator.  Frum's response to this, apparently, was that "Sotomayor's private-sector work was very far from business counseling of the kind that I described. She worked mostly on enforcing trademarks against counterfeiters."  Harcourt considers this an inadequate response, and believes Frum's remarks about Sotomayor were simply dishonest.

I have three responses to this.  

First, I find it difficult to quarrel with Harcourt's bottom line that describing someone who spent eight years as a private litigator as having only had experience in "academia and government" is highly disingenuous -- and that the fact that Frum apparently knows about Sotomayor's private litigation experience but sticks by his remarks tends to push this beyond mere forgivable error.  Second, and this is just a side-note, although Frum is now willing to criticize Sotomayor for what he apparently views as a lack of business experience, I wonder whether he was as public about criticizing Chief Justice Roberts and Justice Alito as nominees on the same grounds.  If Frum is willing to insist on a distinction between counsel work and litigation, then surely he must also take the view that Roberts's experience as a private appellate litigator also resulted in only an "abstract and academic" experience of business law.  Alito had no private experience after law school.  Was Frum equally public in lamenting Alito's nomination -- or more so, since Alito didn't even have the degree of private-sector experience that Sotomayor had?

That having been said, my third point is that the fact that Frum is disingenuous or dishonest does not mean that he is completely mistaken.  Harcourt is, I think, too quick to equate experience as a private litigator with "business law experience."  Of course, being a litigator in private practice exposes you to business law in certain respects, and may give you something of an education about business practice.  But there is indeed a significant distinction between being a private litigator for business and bring a corporate practitioner, whether in-house (especially in-house) or at a big firm.  Litigators come along after the mess has been made, and take the law as a tool in resolving a dispute; they do not work on planning to avoid messes as such.  The nature of their exposure to business, and to business law, is very different from the kind of experience of business one has as a transactional or in-house lawyer, and it is quite possible -- I know! -- to work for many years as a litigator, working for some of the nation's largest businesses, without having a tremendously well-developed sense of the business environment, of what businesses need to do to flourish, or even of significant aspects of business law that are part of the planning rather than the litigation stage of corporate life.  (Indeed, a great litigator may well know far more about, say, civil procedure and federal courts practice than she does about core issues of corporate law.) 

I do not want to give too much credit to Frum, since I do not think his comments were totally honest (or, depending on what he had to say about Roberts and Alito at the time, totally consistent), but I think he is right that private-sector litigation is indeed quite different from business counseling, and that private-side litigation experience is not necessarily the best grounding in "business."  His criticism may have been opportunistic, but that does not mean it was wholly invalid.  

Of course, in another way, Frum is also being short-sighted.  Simply describing Sotomayor as having worked in "government," without parsing out the different aspects of her public service, means that he apparently thinks you learn nothing about business after almost two decades of experience on the bench in our nation's largest commercial center, on district and then appellate courts in which significant developments in business and business law are addressed every day -- in a quite fact-oriented way at the district court level.  Nor does Frum give due justice to the business relevance of Sotomayor's experience on the New York State Mortgage Board or her board experience at Princeton University.  By talking disingenuously about "academia and government," Frum seems to have let these aspects of her experience drop out of sight.