September 29, 2005

"Have you been given a gift, in a sense?"

So Harry Reid is asked in an NPR interview about who the next Supreme Court nominee ought to be. The gift in question is President Bush's low popularity numbers. Don't they give the Democrats more leverage? Reid astutely declines the bait. The low numbers represent sad problems that are "not a gift for anyone," he deftly says.

Reid refers to a list of names, which he's conveyed to the President, of persons who are unacceptable to the Democrats, whose nomination would be felt as "a poke in the eye with a sharp stick." That turns out to be another way of saying these are the nominees we would filibuster.

For some reason, he emphasizes that he wants a nominee who is more of a trial lawyer. He seems passionate faulting John Roberts for never having argued to a jury or taken a deposition. What's that about?

UPDATE: Well, Harry, I hope you like Harriet.

22 comments:

Jack Roy said...

Experience? Roberts, despite his obvious brilliance, had only been a judge for what, two years? A lifetime of litigation experience is an imperfect replacement for a solid career on the bench, to say the least, but I'm guessing Reid thinks it would at least be something.

Just guessin'.

Simon said...

How bizarre - a candidate to sit on an appellate court is solely experienced in appellate practise! The horror! Yawn.

Reid refers to a list of names, which he's conveyed to the President, of persons who are unacceptable to the Democrats, whose nomination would be felt as "a poke in the eye with a sharp stick."

Given their abominable performance "interviewing" Chief Justice Roberts, does anyone else think that "a poke in the eye with a sharp stick" might qualify as due process for several members of the Senate Judiciary Committee?

The whole filibuster thing is an incredibly silly strategy for democrats. I've observed before that I think the nuclear option is unconstitutional (see Judicial filibusters - my take, but cf. In defense of the Judges and Not a victory for Democrats), but I think the whole thing was best summed up by a cartoon that I had in my head at the time (but sadly lacked the skill to draw) of a hyperventilating donkey holding a gun to his head, saying "don't think I won't do it! don't make me do this!", while a disinterested and slightly bemused looking elephant ambled away in the other direction.

How exactly you draw an elephant who is simultaneously disinterested and slightly bemused is as much a mystery as to how to draw a fountain pen with a shark's mouth...

Simon said...

Jack, let me refer you to comments I made here ("[T]he suggestion that [Roberts] is inexperienced, I feel, is moot. Of his sixteen predecessors, only seven had ANY judicial experience - and three of those had less or barely more experience than Roberts - Rutledge (2 years), Hughes (6 years) and Vinson (less than a year). Only White and Stone (16 years apiece), Burger (13 years) and Rehquist (15 years) had what we would now regard as "substantial judicial experience". But chief Justices Jay, Ellsworth, Marshall, Taney, Chase, Waite, Fuller, Taft and Warren - more than half of the men ever to hold that position - had never sat on the bench a day of their lives when appointed").

TigerHawk said...

I don't find it the least bit surprising that Harry Reid wants somebody who is "more of a trial lawyer." As we all know, the term "trial lawyer" does not mean "litigator who has trial experience." It is code for "plaintiff's lawyer" specializing in tort, business fraud or employment discrimination cases. Such people are a bedrock constituency for the Democrats, and deeply threatened by the prospect of a Justice who would uphold legislated caps on damages and such. In calling for a nominee who is a "trial lawyer," Reid is sucking up to his contributors -- nothing more and nothing less.

Jack Roy said...

Simon:

Nice brief you write there. You wanna tell me what else "chief Justices Jay, Ellsworth, Marshall, Taney, Chase, Waite, Fuller, Taft" have in common?

I have more medical training than the guys who applied leeches in the 18th century, being as I had a semester of biology and I understand in a vague way what "germs" are. It doesn't mean I would qualify myself as a doctor simply because those guys did.

Further, let's make a qualitative judgment: Jay and Marshall never had a meaningful chance to sit on the bench before appointment, but look at all the Chiefs of the 20th century you'd qualify as good (i.e., not Vinson) or great. I'm guessing Stone, Warren, Burger and Rehnquist would make the list, depending on your personal ideology. Warren was state AG and Governor for his entire career, but all the others had pretty substantial judicial experience.

Look, if you think Roberts's comparative inexperience doesn't disqualify him from the job, then you and I agree about something. But pretending that there is no issue of his inexperience because Chief Justice Ellsworth served less time is the height of delusional self-affirmation.

Sloanasaurus said...

Bush, should nominate Janice Rodgers Brown. It is the most politically smart thing to do. In my opinion the pool of acceptable "known" candidates is small and includes really only Brown and white men.

If Janice Brown gets confirmed, then we get the superb, brilliant,and qualified justice taht we all wanted. If Brown goes down to a filibuster, Bush then has earned political capital to nominate anyone including white males.

Steve Donohue said...

I would be prepared to argue that John Marshall's knowledge of the law far surpasses Jack Roy's, despite Marshall having practiced in the time of doctors applying leeches.

Roberts isn't exactly a legal greenhorn. He's an accomplished attorney widely recognized in his field as possessing a brilliant legal mind.

And as for your list, Warren never served as a judge, and few would put Burger in the list of great Chief Justices, or even good. Rehnquist and Stone had experience and were both good chiefs, but how about Hughes, who had only six years on the bench and was a far more politicized figure than Roberts is (imagine someone nominating Al Gore to SCOTUS). With only 6 years he did just fine, and I'd be prepared to argue he'd probably wouldn't have needed the six years.

Simon said...

Jack-
What Steven said. I certainly wouldn't accept that Warren or Burger were great chief Justices, and IIRC, Stone is not exactly revered as a great chief justice either. The point is that, historically, judicial experience has not been regarded as the sine qua non of the Chief Justice position.

I'm certainly not defending Roberts, because as I've mentioned before (1, 2, 3), I have serious concerns that the President has blundered. But if you're going to attack him, for crying out loud use something more relevant than how many years he's been a Judge. Clarence Thomas was barely a judge for five minutes before he was a Justice, but he's shaped up to be one of the best Justices on the court.

Goesh said...

The best way to counter a filibuster is to present We the People with a Black, female former California Supreme Court Judge. I now have 3 crisp 20s that says it's so. Make 'em gnash their teeth, George - you can do it, baby, you can do it! ( I think even Mr. Karl would agree with this)

Jacques Cuze said...

Are you serious, "what's that about?"

You're a law professor, maybe you can help us break this down. Of your graduating students that practice law in some fashion, what percentage participate in trials, take depositions, etc?

Where do most of the cases that come before the Supreme Court start? Before an appellate court or in a lower court?

Given their power to make the rules that lower courts must follow, how are they to obtain a real understanding of what the lower courts do and what real life constraints they undergo without having real experience in those courts as lawyers or judges?

And let me echo those that say your letter captcha is sometimes maddening.

Jack Roy said...

Simon:

We're in an odd tango, don't you think: I'm not saying that Roberts isn't qualified or shouldn't be confirmed, and you aren't defending him.

Let's be clear: I believe Roberts will and should be concerned. But my belief to that effect is in spite of legitimate concerns that Roberts may be too inexperienced for the job. I have a hard time accepting that those concerns in an of themselves are sufficient reason to reject his nomination, for all the reasons you put forward (certainly less-experienced judges have been successful; judicial experience isn't the sine qua non, as was said).

That much conceded, I don't see how one can argue that the lack of meaningful judicial experience is irrelevant or "moot." (And before you accuse me of shifting the issue, please point out where I'm "attacking" the nominee. I'm only saying it's relevant and worth consideration.)

PS: Chief Justice Stone most certainly is revered as one of the better 20th century Chiefs; it's just that you don't like him because you don't like the jurisprudence. It may be your own opinion that Clarence Thomas is the best Justice on the Court, and that's a valid opinion. But it's by no stretch the consensus. You may suspect, correctly, that I don't care for the Rehnquist Court. But I was good enough to include Rehnquist on the list of top four 20th C. CJs, because I recognize that not all Court-watchers agree with me. Just sayin'.

aidan maconachy said...

Ann said - "He seems passionate faulting John Roberts for never having argued to a jury or taken a deposition. What's that about?"

Aidan says - "grabbing at straws"

Simon said...

A strange tango indeed - you believe Roberts will and should be confirmed, in spite of your concerns that Roberts may be too inexperienced for the job, while I believe he was and shouldn't have been confirmed, and that his relative lack of experience is no bar! ;)

Justice Thomas is not my favorite o the court, and in fairness, the Rehnqist court has never been the Rehnquist court in anything other than name; it was the O'Connor-Kennedy court, and suffered for the lack of a firm theoretical underpinning on the parts of those jurists, produing "narrow, case-by-case results", or "incoherent, unprincipled results", depending on one's point of view.

me said...

Trial experience, while helpful, is not a pre-requisite to being a good Supreme Court Justice. Roberts probably has the best resume of any candidate in the last 20 years.

What would have been nice and interesting is if Roberts hadn't had to have a gag order, so he could say what he really thinks. Unfortunately, the Bork hearings destroyed any possible intellectual discussion before confirmation.

If you want to be confirmed, you must keep your mouth shut.

Let's hope Bush's next pick is as well qualified as Roberts.

The Mojician said...

President Bush needs to appoint either someone with first name of "Thomas" or last name of "John" so that we can have a "Before & After" just like Earl Warren Burger.

Goesh said...

Hail to the Chief! He just got the nod of approval.

anselm said...

Trial experience would give a justice a little insight on the value of clarity, a much-ignored virtue as of late. Usable standards that don't just result in more dinging around in the lower courts of appeal.

Also, an experiences justice could approach criminal procedure with an understanding of how the criminal courts work on the ground rather than total credulity of law enforcement.

Simon said...

Trial experience would give a justice a little insight on the value of clarity, a much-ignored virtue as of late. Usable standards that don't just result in more dinging around in the lower courts of appeal.

Getting rid of O'Connor and Kennedy would achieve precisely that. One down!

vnjagvet said...

Interestingly, the new Chief Justice would have had about the same judicial experience as most of the judges nominated to that position but for the U.S. Senate's failure to confirm him in the early 90's.

What he gained, IMO, was experience practicing law with real clients. Not only was he arguing cases, but he also was advising a wide range of clients on appellate litigation matters covering not only constitutional law issues, but also knotty federal administrative and statutory legal issues. This is experience other justices lack.

As a trial lawyer of nearly forty years, I am not unmindful of the value of such experience, especially in matters involving trial practice such as jury makeup, evidence, privilege and the like.

But I think the experience of practicing law and having to advise clients on matters involving litigation is even more important.

Simon said...

Interestingly, the new Chief Justice would have had about the same judicial experience as most of the judges nominated to that position but for the U.S. Senate's failure to confirm him in the early 90's.

Respectfully, I think that's something of a canard. If the Senate had confirmed him in the 1990s, Bush would most likely not have nominated him to the Supreme Court. The two biggest strikes in Roberts' favor for the nomination were the absence of a paper trail (which wouldn't have been the case had he been a judge for a decade) and that he was one of the President's own men, and the President has great faith in his own judgement of people (and, had he been confirmed in the early '90s, he wouldn't have been one of Bush's men).

Justin said...

the trial lawyer comment is based on a long-running argument on the left, which is that since the retirement of Marshall and Brennan, the court has lacked someone with a real understanding of a record or the application of their decisions to the mechanics of trials. Given the absurdity of some of the recent criminal law procedure decisions, I think this is essentially correct.

whit said...

I did't read the whole thread but in case someone else said consider this a second.
I think Harry Reid and his ilk should get "a poke in the eye" as well as a black eye and a bloody nose for good measure. He and Pelosi are despicable.