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Friday, April 30, 2010

Nonlawyer Justice?

As is usual when a vacancy comes up on the Supreme Court, some people suggest that the President nominate someone other than a sitting judge, to give the Court some more diverse experiential background. That's not such a bad idea -- the Court could benefit from having some people who know what it's like to run for office, manage a large law firm, or run a government agency.

But what about the perennial suggestion for a nonlawyer Justice? Now that, I would say, goes too far.

The suggestion that we put a nonlawyer on the Supreme Court seems to be based on the notion that the Supreme Court just makes up constitutional law anyway, so why couldn't a lay person make it up just as well as a lawyer?

Quite apart from the fact that I'd like to think that there's more to constitutional law than that, I think people who suggest putting a nonlawyer on the Court are forgetting that the big-deal con law cases that they have in mind make up just a small percentage of the Supreme Court's docket.

Even if you think that the Supreme Court just makes up the answers to questions about abortion, affirmative action, right to die, and other big-deal constitutional issues, what is your nonlawyer Justice going to do with questions like, "can the plaintiff in a diversity case add a claim against a non-diverse third-party defendant impleaded by the original defendant?"

That kind of question actually takes up a pretty substantial percentage of the Supreme Court's time. Even if you regard big-deal con law cases as being in a separate category, I don't think nonlawyers would do such a great job with the rest of the Court's docket.

Posted by Jonathan Siegel on April 30, 2010 at 10:28 AM | Permalink


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I'm going to respond to the non-judge part, if that's alright. It's true that a non-judge nominee would bring a different perspective to the Court. But that itself does not necessarily make such an appointment a good idea. It has to bring a useful perspective, not just a different one.

So, two questions: what makes those differing perspectives specifically useful, and why can't that utility be attained by just appointing judges with more diverse pre-judgship backgrounds?

Posted by: Andrew MacKie-Mason | May 1, 2010 12:52:16 AM

I agree with you both. There is so much diversity among lawyers, that choosing a non lawyer seems simply unnecessary. I definitely think that presidents should appoint candidates who increase the court's diversity of gender, race, and profession. But so much of the job involves a deep understanding of legal precedent, and a non-lawyer could have a difficult time catching up. Also, a non-lawyer would never be considered for an appellate judge, correct? So why impose a different standard for the SCOTUS?

Posted by: GJELblogger | Apr 30, 2010 6:28:20 PM

In the interests of diversity, not to say good judgment and experience, we don't have to look so far as to propose a non-lawyer. We could improve the court immensely by appointing one of those many lawyers, like patent lawyers, who have a clue about math, science, engineering and economics, which none of the current Justices, Breyer excepted, has. Of course no POTUS since Hoover and Carter has had any either, and the lawyered-up COTUS has only about 8 of 535 members who have a clue.

Posted by: Jimbino | Apr 30, 2010 11:46:00 AM

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