July 19, 2005

The Court and the real world.

Stuart Taylor argues in the September Atlantic that lack of any real world legal experience has led the Supreme Court to make head-in-the-clouds decisions that make trying cases, doing business, and running the government terribly difficult for the rest of us. (The link is for subscribers, but for the next three days you can get to it here.)
Now that Sandra Day O'Connor has announced her retirement, how many remaining justices have ever held elected office? How many have previously served at the highest levels of the executive branch of government? How many have argued big-time commercial lawsuits within the past thirty-five years? How many have ever been either criminal defense lawyers or trial prosecutors? How many have presided over even a single criminal or civil trial? The answers are zero, zero, zero, one, and one, respectively. (David Souter was a New Hampshire prosecutor once upon a time, and later served as a trial judge.)
The Court fusses around producing ten opinions and 140 pages of inconclusive nattering about a couple of Ten Commandments displays. Meanwhile:
[A]ccording to Michael Greve, the head of the American Enterprise Institute's Federalism Project, this Court has "resolutely refused to tackle the inconsistencies and absurdities that, after decades of neglect, afflict nearly every area of commercial litigation." One reason, Greve argues, is that with the exception of Justice Breyer, "the Court has absolutely no idea what business litigation in America now looks like."
I'm not convinced the background of the Justice is what would make a difference. After all, as Greve notes, it's Breyer, not Souter, who brings practical common sense to the table. (Though, ironically, it's Breyer's vote that made the two 10 Commandments cases go in opposite directions.) I realize there's a push in some quarters to get President Bush to pick a person with political experience to replace Justice O'Connor, but I'm very wary about that. You're not just importing political experience into the Court, you're introducing one individual politician, with the particular set of political commitments that got him (or her) elected.


Charles said...

Which might have some meaning since the President is supposedly considering people with no previous legal or legislative experience. Won't that be interesting as the hostile Senators try to find out some dirt or decisions about a regular citizen they must rake over the coals and then make it nice for the regular citizens back home? "You people are too stupid to make decisions, but vote for me to make them for you." Nice touch.

Tristram said...

There is something to be said, that having essentially, pure academics making the decisions may not provide the best possible outcome. It seems that many judical opinions ultimatley relie on tests or balance issues. If the people deciding what test are far removed from the actually implementing those decisions, it is not hard to imagine that their judgments may be unrealistic or even unreal.

Pure thought / logic / reasonhas an almost addictive appeal, but the world is a messy place. I am torubled by the possibliltiy that the judges maybe so far removed from real life, that they dismiss the seemignly inconsequential harm that can (and often is) devastating to at least the parties in their decisions, much less America as a whole.

OTOH, Ken Lay, Bill Clinton or Elliot SPitzer as SCOTUS Justice certainly isn't appealing to me either.

At least, in theory, the point of the S

Richard Fagin said...

Political experience? Heavens, no! Earl Warren was governor of California, and a "law and order" one at that.

cobra verde said...
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cobra verde said...

"You're not just importing political experience into the Court, you're introducing one individual politician, with the particular set of political commitments that got him (or her) elected." This is ALWAYS the case, whether or not the Justice was, in fact, a politician and whether or not his/her political nature disipates or reverses with time. Of all the hundreds of qualified contenders for the current vacancy, the pool of those truly being considered is probabaly less than 25. Do you really think it's possible that this group has had no political agenda, actively pursued, to get to this point in the selection process? Aside from that, the very fact that each exercises a vote, and that the simple majority of 5 out of 9 carries a decision, reads P-O-L-I-T-I-C to me. Ever hear of FYIGMFV?