A couple of days ago, I fell into a trap. I posed that Sonia Sotomayor should replace Justice David Souter on the Supreme Court. While I maintain that she would be a fine appointment, Norm Pattis has opened my eyes to an ugly bias that found its way into my thinking, and disabused me of my error.
The current court is composed entirely of former federal appeals court judges. All but one got their professional tickets punched at two of the nation’s premiere status factories: Harvard and Yale. Three of the current justices have never even worked in private practices. As lawyers go, the current justices are glittering gems. It is an elite group, long since detached from the world the vast majority of folks inhabit.
When he looks for someone with real world experience on the Court he turns to David Souter. Why Souter was a trial judge and an attorney general of the State of New Hampshire. “No other justice has either sort of experience,” [Adam Liptak] writes.
Norm is right. We have so elevated the position of Supreme Court Justice that it has become inconceivable that anyone could be worthy of the seat without experience on the federal bench, preferably a big circuit one, or the intellectual prowess of the Academy, or the “practical” experience of holding high office, with the blind assumption that a few years serving the government constitutes real experience.
There’s a reason for this, as past experience with Supreme Court appointments, not the least of which was Justice Souter who obviously didn’t turn out the way Bush the Elder expected, is that these are people with clearly discernible track records. Whether it’s the written opinion, the law review article or the executive policy making, we know what we’re buying. No pigs in a poke here.
Of course, that means the breadth of experience on the Supreme Court will run the full gamut of judge to lawprof to prosecutor, at best. As Norm points out:
When President Obama opposed John Roberts’ appointment to the Supreme Court, he said “adherence to precedent and rules of construction will only get you thought the 25th mile of the marathon.” What concerns the president is the view during the last mile, a view that takes account of “the broader perspective on how the world works.”
Where could we possibly find someone capable of running that last mile? The answer is clear:
A trial lawyer knows about raw human need and the law’s rough edges. It is a trial lawyer’s job to find the intersection of terror, fear and tears with the high doctrine and principle of the law. Not one member of the current court has ever sat with a client and his family during jury deliberations to discuss what will become of a family should the client be sent to prison. Not one of these legal scholars have ever told a person that the law’s reach will not embrace the harm they have endured. I cannot fathom Scalia counseling a client about sovereign immunity.
In the trenches, we experience life, along with the huddled masses who care far less about whether a judge is a constructionist or originalist or texturalist. We know the consequences of decisions, together with the consequences of delayed decisions. Our view is ground level, and our understanding of how badly the law can hurt comes from holding the hands of the maimed. We know that people lie, cheat and steal, but we know that isn’t limited to the defendants. We have philosophies, but we live realities.
The bar’s elite will shudder at the thought of an uncouth lawyer sitting atop justice’s pyramid. But the shuddering really reflects the conceit of those who view the law as little more than a pyramid scheme. The law is not science. There is no Platonic elite governing eternal truths exposed briefly to view in qoutidian conflicts. The law is simple: It is civilized society’s way of brokering peace in the face of conflicts rubbed raw by human need. A man dies, and another is accused of the killing; a mother cannot afford the rent for her home, and her landlord presses her; a child’s parents do not provide the care a state official thinks necessary and now hearts are torn assunder. This is the world most Americans inhabit. We do not command corporations, run large agencies, stride the corridors of power as lawmakers or judges. When we awaken in the morning, we hope, and the law is what we turn to when the hopes of conflicting parties threaten to turn into despair.
Isn’t this what President Obama says he is looking for in the next Supreme Court Justice? We have a court comprised of doctrinal elitists, who render opinions that reflect what they believe to be real in a world they’ve never actually touched or experienced. What if there was a justice sitting on that Court who had actually looked into the eyes of the mother denied her child, or had to explain why a young man would spend years in prison awaiting the 3% chance of reversal, if only someone would risk the possibility that his less than perfect trial could have ended wrongly.
The Times reports that Mr. Obama wants a judge who “understands that justice isn’t about some abstract legal theory or footnote in a casebook…. It is also about how our laws affect the daily realities of people’s lives.” Hence the first question of any potential nominee: “When is the last time you appeared in a courtroom to represent a person making less than the median income of the United States?” No one on the short list of names being tossed about can answer that question with anything other than silence.
With this begins a Movement. I call it the Trench Lawyer Movement, born of Norm’s rejection of the status quo of Justices isolated from the people, ignorant of the problems and blinded by their theoretical or elitist notions of how the real world is.
Consider, if a mere one of nine was to be a trench lawyer, without the trappings of great wealth, power or importance, how terrible would be the disruption in the halls of power if there was a lone voice to speak for the hundreds of millions of Americans about whom the others speculate and theorize? Shouldn’t every person who sits in judgment of another have had the experience of holding the hand of a living, breathing person, and seeing the real world consequences of his or her decisions?
Norm Pattis has persuaded me that my bias was shortsighted and wrongheaded. We don’t need another appellate judge, or law professor, or high office holder, or prosecutor on the Supreme Court. We already have those voices. We need the voice of a trench lawyer.
Are you with us?
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So you’re looking for a trial lawyer that can run a marathon, eh? Now where can we find one of those…
Good try, Mr. Literal, but the marathon was a metaphor.
Metaphor, schmetafor.
Marathoning is good training for litigation that oft times seems to be never-ending. And it helps you keep focused when exhausted and worn down.
But you need more qualificatins to make this better…the new nominee should also own a dog, as the dog helps you keep a healthy perspective on life and won’t treat you any more or less royally than any other owner.
So you need a marathoning trial lawyer that owns a dog. And if I could get this slobbering mutt to stop licking my hands while I type, I could come up with more…
When the dog’s done enjoying you, can we get this back on track? If you really want a litmus test, let’s try this one:
Can the nominee understand why this is funny? What about this, which almost bought its author a criminal contempt sentence? If a Supreme Court Justice doesn’t understand why people write this, believe this way, feel like this toward the legal system, and can’t laught at it, they really don’t get what the regular people think at all.
Frankly, I would love to have had a future-judge listen in when I picked a jury last month in an elevator door-strike case (knocked down, torn rotator cuff). Manhattan jury pool, and one after another people yelping about how the they couldn’t sit fairly because it was the victim’s fault (they hadn’t heard any evidence yet), or they despise insurance companies, or some other nonsense.
Having a been-there, done-that presence on the bench — someone who understands the day-to-day difficulties they (and their counsel) face while navigating the legal waters would be a welcome relief to the ivory tower sort.
BTW, a good graphic in the NYT about the source of our SCOTUS judges over the course of our republic:
It’s comments like this that make this endeavor critical. From the New York Times :
Assumption: Tough sentencing laws are the solution to black on black crime, and thus protect the community from itself. Tough is good. Tougher is better. Sentencing is the solution to minority crime. Is this our future?
Great idea, but I don’t think people will get it. I heard some political commentators saying that Obama wants someone with real world experience…like an elected official.
Sigh. It’s amazing how much of our criminal law is made by people with no more experience at it than, well, than I have.
[Ed. Note: This is the 10,000th comment on Simple Justice. Thanks Windy!]
That’s precisely why Norm started this Movement, because of the absurd bias in favor of officialdom as if these are the people who actually “feel your pain” and understand the real world. This absurdity must be called. There is a real world, and it will not be found in the hallways of power.
Wow. Wish I had discovered a blog like this one when I was a public defender–some clients would have benefitted from New Thinking.
As to Supreme Court justices, I vote for a law professor. Yee gads, tooooo many federal judges. In law school (yes, in the Dark Ages, long long ago) I had now Justice Anthony Kennedy for con law–he doesn’t count, though, as a sitting justice from law school. He was a (lowly) adjunct practitioner at the time, just getting appointed to the federal bench.
Glad you found us. Not sure that anything here constitutes New Thinking; just happy if it constitutes “thinking” at all.
As public defenders, we were more about Triage than Thinking, alas–yet we were Good at the chaos. I left after almost 20 yrs to get the Ph.D. at a top research university–intending to understand how jurors think. {It was, it turned out, to the dismay of the graduate professors. They had never experienced a maverick criminal defense attorney in their midst.}
Sunwolf:
Weren’t you hanging out at Thunderhead Ranch in mid-nineties?
Great idea. Not going to happen. Two words: Harriet Miers. Anyone?
I think that you must have someone that has some bench experience. The courts are so clogged today which makes it important that the dockets keep moving. Though I am found of academia, I think that a balanced individual would make the best candidate.
[Ed. Note: Attempted SEO name replaced with name that better reflects the quality of the comment and intellect of the commenter.]
Two more words: Government lawyer.
White House Counsel is not a trench lawyer, her earlier career notwithstanding.
I’m not sure that Houston can survive without you. Better get back there right away. No stopping to think, just go.
I think we should start grooming Lammers for the job. Get him into a law school position so he can write a few papers, then run him for judge so he’ll have some bench cred…
I think you’ve come to the wrong place to push this agenda. Much as I respect Ken, and he got one right about Ventris, he’s still a prosecutor and it’s still just one right-headed analysis. Not quite enough to make the world turn over on its axis.
Of all the things a justice needs docket management skills rank right up there with, er, um, well crossword puzzle acumen.
Yeah, well, I really just like the idea of all his old CLTV videos coming up in the confirmation hearing…
Now that raises an interesting image, the dog, the beer and that dopey basketball team he favors. Finally, a non-partisan Senate.
I would settle for someone (anyone?) who did not go to Harvard or Yale. It would be the first step in breaking the destructive grip that Harvard and Yale have over amercian legal education.
Norm has another great post in this same vein today, describing a dinner conversation he had with Sotomayor and some Big Government lawyer.
The post you refer to is here, and is indeed another great post by Norm. The “Big Government lawyer” was Charles Fried, a former Solicitor General and Harvard lawprof, who Norm found to be “witty, urbane, self-assured,” everything Norm is not. But then:
For everything Fried was, and all he had done including 26 or 27 cases argued before the Supreme Court, he didn’t know or share the misery of real people. His life as a lawyer was sanitary, never having been touched by the very people for whom he argued. And this is why those in power, despite how much they know, will never understand what trench lawyers do.
I’d like to see a district judge go straight to the high court. While not quite a trench lawyer, they’re a little closer to the trenches than circuit court judges or professors.
Of course, that would change everything since District Judges are so much more like real lawyers than Circuit Judges. Sometimes, I confuse the district court judge with the federal defender, they look so much alike.
While not a radical change, a district court judge occasionally has to be in the same room with litigants and might even have occasion to make eye contact with one of them as he makes a ruling that will impact their case and/or life.
Not a radical change? You think so very small, and expect so very little.
Federal defender…hmm…so what is Terry MacCarthy up to now that he’s retired?
How about John Edwards, he fits your profile, well except for the ethical lapses, but there does seems to be some tolerance precedent for those kinds of issues in this Administration…
I nominate Bennett. If nothing else, we’d get some GREAT dissenting opinions.
Great idea and well thought out. Going to have to discuss this with my associates tomorrow.
[Ed. Note: Aside from changing the SEO name (Sorry Blake), I was so deeply moved by its sentiment that I’ve decided to leave it up. Actually, I’m leaving it up because I like Windy’s response.]
Your comment is pointless, yet succinct. I’ll bet we both get deleted.
What Dr. SunWolf refers to as ‘New Thinking’ I like to call ‘common sense’. But in my 20+ years working for the government, I’ve observed (for the most part) that the higher one climbs on their professional ladder, the more common sense they leave behind on every rung. So by the time they reach their top step, ‘common sense’ becomes the ultimate misnomer. Or is it an oxymoron? Whatever ‘common’ sense they have managed to retain is no longer common, but rather a rarity, among their peers.
Bennett, the Great Dissenter. I bet they would have some great parties, too.
Ironically, had you not posted this comment, I would have taken Beavis down in a flash. But if I did, your comment would go with it, and yours is worth the bandwidth.
After 20+ years in government service, you have obviously managed to retain some connection to reality. A very difficult thing to do. Thanks for your thoughts.
If only Terry McCarthy was a bit younger, think of the possibilities. It sounds like a joke, but it really isn’t.
Let’s try to stick with someone who is still in the trenches. And some of us can keep our fly zipped.
Now you’ve done it. Lammers is out shilling for himself. We’re doomed.
Don’t blame Windy for it all. Mr. Tannebaum informed me (via a tweet) that he was already shopping my name to a few congressmen way back on the 1st.
Whew! Now that I know that, I can breath easier again. After all, we all know the clout Mr. Tannebaum carries.
Who wants to keep their fly zipped? What we need is a trench lawyer that tries to fuck everything that moves. Maybe if the Supreme Court was getting laid they wouldn’t be such pricks.
Judging Empathy: Is It Just the Five Percenters?
Judging Empathy: Is It Just the Five Percenters?
Judging Empathy: Is It Just the Five Percenters?
When President Obama announced that he would seek to appoint a justice to the Supreme Court who had empathy, Orin Kerr at Volokh Conspiracy attempted to figure out what he meant.
Judging Empathy: Is It Just the Five Percenters?
When President Obama announced that he would seek to appoint a justice to the Supreme Court who had empathy, Orin Kerr at Volokh Conspiracy attempted to figure out what he meant.