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For high court, experience optional

As President Bush looks to fill a Supreme Court opening, many suggest that what the court needs most is a new perspective.

By BILL ADAIR
Published July 18, 2005

WASHINGTON - A growing number of senators say the Supreme Court doesn't need another judge.

Senators from both parties say that when President Bush chooses a replacement for Justice Sandra Day O'Connor, he should break with recent tradition and nominate someone without judicial experience.

Sen. Arlen Specter, chairman of the Judiciary Committee, summed up many senators' feelings when he said judges are out of touch with ordinary people and too focused on "the footnotes and the semicolons."

The prospect of a judicial rookie even wins support from the court itself. At a recent lunch with Senate leaders, several justices said they would like a nonjudge in their ranks.

Bush says he's open to the idea and is "considering all kinds of people."

Senate Majority Leader Bill Frist says an outsider would bring "operational thinking outside of the judicial realm."

A physician who still keeps a stethoscope on his desk, Frist said it's important to have judges and elected officials with "different, broader experience" instead of people who have been in government offices all their careers.

But legal historians and other senators question whether a nonjudge is ready for the nation's highest court, where matters are so technical that justices make jokes about ERISA, the Employee Retirement Income Security Act.

The workload, says legal historian David Garrow, "is either arcane statutory questions or highly technical statutory questions, or exceptionally tiresome and boring statutory questions - or all three."

No experience required

Anybody can be a Supreme Court justice.

The Constitution doesn't have any qualifications. All a nominee needs is Senate confirmation.

Of the 108 justices since 1789, before joining the court, 67 had state or federal judicial experience. Forty had political careers that ranged from U.S. senator to custodian of sequestered property for the Confederate states.

Only one had neither political nor judicial experience, according to Congressional Quarterly's Guide to the U.S. Supreme Court : George Shiras Jr., who ran a Pittsburgh law firm in the late 1800s.

President George Washington believed judicial experience was crucial, so his first nominees were former state judges. But in the past century, presidents relied more on political activists, elected officials or cronies.

In the past 30 years, the pendulum swung back to Washington's approach. Presidents stopped nominating politicians and primarily nominated judges. They liked judges because they knew federal law and their judicial records were often more consistent than politicians' voting records, enhancing the chances for Senate confirmation.

No one with congressional experience has been appointed to the court since Sherman Minton in 1949.

Of the current court, all have been judges except Chief Justice William Rehnquist, a Phoenix attorney who worked on Barry Goldwater's presidential campaign and served in the Nixon administration. O'Connor was elected as a state senator and a judge in Arizona.

Garrow said there has been a dramatic change "from when a majority of the court had elected experience to now, when O'Connor leaves, the total will be zero."

Stuck in the courthouse

The senators who want judges to be more in touch with ordinary people are no melting pot themselves.

Compared with the nation as a whole, the senators are disproportionately wealthy, white and male. But they must run for re-election every six years and they give lots of speeches to a wide range of audiences. Those Rotary Club lunches and July Fourth parades keep them in touch with the nation, they say.

By contrast, Specter said, a typical judge doesn't get out of the courthouse enough.

"You look at records, you read cases, you have very little contact with people," the Pennsylvania Republican said.

Senate Democratic Leader Harry Reid said he, too, would like Bush to appoint someone who has not been a judge.

"We need diversity in the Supreme Court like we need diversity everyplace else - diversity of ideas," said Reid, who has recommended several senators for the O'Connor seat.

Legal analysts and historians say many of the court's most highly regarded justices are former politicians, including legendary justices John Marshall, a former Virginia legislator, and Earl Warren, a former California governor.

On the court, politicians such as Warren are known for using their political skills to get more votes for their opinions. They also aimed high, with sweeping opinions on big topics that were more understandable to ordinary people.

The Warren court, known for its landmark civil rights decisions, had three former senators and two former attorneys general.

By contrast, career judges often work solo and write opinions that tend to be more narrow and technical.

"There is relatively little back and forth between judges ... almost nothing in the way of horse trading," said Tom Goldstein, a Washington attorney who often argues cases before the Supreme Court. "They take things case by case rather than as a large issue, so they aren't taking the long view."

Too much to learn

There are drawbacks to having judicial rookies on the court.

When elected officials dominate, their opinions can be seen as too political. In the 1960s, some conservatives were so unhappy with Warren's opinions that they wanted to have him impeached.

Also, the issues facing the court are more technical and complicated than they were 40 or 50 years ago. A newcomer would have a lot to learn about ERISA.

"Someone who just came from the political branches would have an enormous amount of catching up to do to understand the byzantine structure of federal law," Goldstein said.

Garrow, the legal historian, said the newcomers would be so overwhelmed they would become too dependent on their law clerks.

"I'm afraid that someone with no federal appellate experience would find it very easy to give the job away" to the clerks, he said.

Sen. Jeff Sessions, R-Alabama, said he would prefer another judge.

"At this point in history, we need a proven professional who understands the Constitution and is faithful to it. They need to be highly skilled and of proven ability," he said. "We don't need another politician on the bench."

--Bill Adair can be reached at 202 463-0575 or adair@sptimes.com

[Last modified July 18, 2005, 01:38:10]