List of SCOTUS justices with no prior "judicial experience"

[Lyric]

http://supreme.lp.findlaw.com/Supreme_Court/justices/nopriorexp.html

41 out of 109, or 38% of them.

Note how many "liberal lions" are there. In fact--damned near ALL of the most liberal, progressive justices to ever sit the high bench are on that list. There are a few exceptions, but they are, indeed, exceptions.

From a historical standpoint, it seems that a lack of judicial experience correlates to a higher likelihood of favoring federal over state power, to viewing the Constitution as a "living document," and to interpreting the Bill of Rights broadly rather than narrowly.

Why? I have no idea. Correlation does not always equal causation, but it does make it easier to find patterns and links. Perhaps judicial experience can make a judge jaded and wary, thus tending to increase his/her judicial conservatism. Perhaps liberals overall are less likely to take jobs as judges, period. Perhaps it's something else entirely, or nothing at all.

One thing is for certain, though. Liberals are the LAST ones who should be making the argument that any "good justice" MUST have prior judicial experience. Tell that to Warren, Brandeis, Fortas, and O'Douglas. Without them, where would we be in terms of civil rights, children's rights, reproductive rights, free speech, or privacy? There are others, but those four stand out in particular--and NONE of them had any prior judicial experience. All were 20th century, modern justices--we're not talking John Jay here (although Jay didn't have any prior judicial experience either.)

We have liberal-ish justices right now, but they aren't nearly as passionate, as creative, or as willing to make a controversial ruling as their Warren-era forebears were. I am grateful to them for holding on, but there is NO doubt--our SCOTUS needs a liberal firebrand, and badly.

And from where do most of our liberal firebrands come from? Interestingly, they don't seem to come from lower benches.

We'd do well to consider that before spouting off demands for someone with "judicial experience."

[billyoc]

1. There hasn't been an inexperienced SC appointment since Viet Nam.

I don't care one way or the other, but that's the trend.

[Lyric]

4. I submit that there hasn't been a liberal firebrand nominated since then, either.

If that's the trend, then it's a trend worth reversing--in the best interests of the nation.

[RoyGBiv]

2. Judicial experience ...

Are there those among us arguing that judicial experience is necessary? I'm not doubting, but I personally haven't see that specifically.

What I have seen is a claim that someone without legal or judicial experience is what is needed, and I have seen a counter to that. This argument, such as it is, runs along the axis of wanting someone utterly outside the mainstream who isn't even a lawyer on the one side and someone who has sound and established credentials as at least a legal scholar or whose education and experience is associated strongly with the law on the other, e.g. a lawyer of some variety.

The four specific examples you mention meet that criteria. They hadn't served on the bench, but they were all lawyers. Two had served roles as attorneys for a tier of the government. (The other two may have, but I'm going off what's in my head.)

From a historical perspective, what we have here are differences that have shaped the development of our culture generally. Most of the justices that served SCOTUS during the time your examples served were what we might call professional intellectuals who went into public service. That career path is a dying breed these days. I'm not offering an opinion on whether this is a good or bad thing necessarily; there are several ways to look at it. Regardless, the political, social, and, importantly, economic environment that created someone like Louis Brandeis especially no longer exists.

[Lyric]

3. I believe that the death of professional intellectuals is exactly the problem

and that our nation is not going to improve a whit until we solve it. We sneer at intellectuals now, and dumb everything down to the lowest possible level. Without respect for intellectualism (and that includes the kind that exists outside the sphere of hard science and technology) we cannot progress. We can build bigger, better bombs, vehicles, and computers, but our society itself will not, cannot evolve past where it is right now. We have lost our visionaries. We've driven them out purposely, so that the ruling elites have less competition.

Sorry for getting off-topic. Your post just touched on something that's a very tender nerve with me.

For the record, I have indeed seen people here stating that we need someone with "judicial experience." Sure, we haven't had a justice like that nominated in a long while--I'm not sure who the last one was, but I'm guessing it happened in the 60s or 70s? Coincidentally, that just happened to be near the point in our national history when we stopped valuing vision and started revering "experience."

If anybody here wants to make the argument that experience is always better than vision, then I have a friend I'd like them to speak to. His name is Barack Obama, and he came to town to throw out the jaded, desiccated Washington "insiders" and infuse some fresh, insightful, visionary blood into national politics. A scholarly nomination rather than an "experienced" one would resonate well with the mantra of change.

[RoyGBiv]

6. I'll take your word for it ...

Strictly speaking the argument for judicial experience as being necessary for a SCOTUS appointment is absurd on its face, but having not personally seen these arguments, I am wondering if one of the qualifiers is not that this is necessary from a practical political perspective. That is, for Obama's appointment to garner Senate support, specifically Judicial Committee support, is this argument stating that he will need someone with a judicial track record, so to speak? Not that I agree with that either, but it at least has some substantive rationale behind it.

Regarding intellectualism and the lack of it, yes, that is the problem. Unfortunately, that's not easy to fix and won't be fixed, even if a concerted effort is made to fix it, without some great and tumultuous upheaval in the way we view everything from social class to education to employment to religion. Our society as a whole has changed remarkably since its inception with a accelerated increase of change in the last half century in good ways and bad. The loss of intellectuals as a distinct group has been one of the worst and a casualty itself of much of that change.

And I could go on, but then I'd be getting into territory that would bring down the thunder of those who see it as a positive good that we are determined to believe everyone can be and should be treated as a genius. I don't care to have that argument right now.

[TwilightZone]

5. Ah, but some are suggesting Obama select someone with zero legal or judicial experience.

Good luck finding many former or current justices who fit that description.

[Lyric]

7. Legal experience is not equivalent to judicial experience.

My post has nothing to do with opposing the idea of nominating a lawyer. In fact, I think a legal degree is incredibly important. However, there's a difference between getting a legal degree from Southern Methodist University and getting one from Harvard. We need a brilliant, respected person--not a Harriet Myers. Not any old lawyer is going to work. He/she needs to be familiar with both law AND law-making. Earl Warren was a lawyer, but he was also the Governor of California for three terms, as well as having served as California's Attorney General for some time before his gubernatorial terms. He turned out to be one of the best liberal justices we've ever had. Legal knowledge is paramount, but knowledge of practical legal application and lawmaking is important too.

[TwilightZone]

8. I'll admit that I haven't been in all of the SC threads...

but I haven't seen a lot of people on DU demanding that Obama's selection be someone with judicial experience. On the contrary, I see a lot of suggestions that the nominee be someone well versed in constitutional law. Clarence Thomas should pretty much prove that judicial experience doesn't do squat in preparing someone for the SC.

[Lyric]

10. Clarence Thomas. Blech.

Worst SCOTUS mistake ever made. All he does is mimic Scalia. He might as well sign his decisions "What Scalia said." Actually, I think there have been a few cases in which he pretty much DID.

[Downwinder]

12. JPs and SCOTUS do not have to be lawyers. n/t

[TwilightZone]

14. Being well-versed in constitutional law is a requirement.

If that can be accomplished without obtaining a law degree somewhere in the process, fine.

Example, please?

[Downwinder]

17. James Francis Byrnes

never attended high school, college or law school, but apprenticed to a lawyer and was admitted to the bar in 1903.

[TwilightZone]

18. I meant a current example.

A candidate to replace Souter who is versed in constitutional law and doesn't have a law degree.

[Downwinder]

19. Concession

The last person I knew that "read" the law rather than going to an ABA accredited school passed away about 25 years ago. My contention was that there is no legal requirement for a Supreme Court Justice to be a lawyer.

[TwilightZone]

21. Sorry, I realize that I wasn't specific enough in my initial post.

I meant to indicate that it was my personal opinion that being well-versed in constitutional law should be a requirement for Souter's replacement. I didn't mean to imply that it was a legal or constitutional requirement, though in re-reading my post, I can see how it could have been read that way.

[Downwinder]

27. I was just getting on my soap box.

I feel that we have gone to far in the educational direction. A significant portion of those on the list of non jurists came into law through practical experience, "reading the law" or clerking. If laymen are to be responsible to the law, it must be a practical law which they can understand. The law is getting too esoteric with little regard for common sense. By requiring an ABA approved degree without providing or allowing an alternate route to the bar the States have granted the ABA essentially a monopoly on the profession.

[TexasObserver]

9. I do not believe prior judicial experience is required.

There are many great legal minds who have never served on the bench. The fact that someone got a federal appointment to the bench previously at a lower level doesn't suggest they're a great Supreme Court justice choice. Most of them are not.

I want someone that I KNOW stands for something. Of course, I expect them to be a lawyer, but they could be a professor, or a governor, or a trial attorney.

[Lyric]

13. I don't necessarily want someone with a specific, narrow agenda--

who "stands for something," I mean, unless that "something" is the idea that our liberties should always get broader, not narrower. A progressive society becomes freer over time. A regressive one constricts inward. If you have THAT principle as the basis for your judicial philosophy, then you are probably going to be making choices that liberals and progressives would agree with, since that is the basic foundation of our overall ideology.

A judicial commitment to progress is the only "litmus test" that I think is necessary, because that philosophy touches ALL of our issue concerns.

[SpartanDem]

11. That is just asking for another Harriet Miers situation

the fact is today placing somebody on SCOTUS bench with no judical experience with is just not accpetable.

[Lyric]

15. I disagree completely.

I think that we need to redefine "acceptable," because ever since we started making "experience" a requirement for the SCOTUS, civil liberties have suffered stagnation and even lost ground.

Why should Obama nominate like Reagan, Bush, or Clinton? Do we want him to govern like either of those two, or do we want him to govern like a 60s era Democrat?

As for Myers--bad comparison, as she was unqualified in more ways than just lacking judicial experience.

[TwilightZone]

16. I believe that Obama is incapable of a Harriet Miers-type pick.

I give him significantly more credit than that.

[ProSense]

20. Attorney General and Solicitor General no judicial experience? I think that's a stretch

The task of the Office of the Solicitor General is to supervise and conduct government litigation in the United States Supreme Court. Virtually all such litigation is channeled through the Office of the Solicitor General and is actively conducted by the Office. The United States is involved in approximately two-thirds of all the cases the U.S. Supreme Court decides on the merits each year.

The Solicitor General determines the cases in which Supreme Court review will be sought by the government and the positions the government will take before the Court. The Office's staff attorneys, Deputy Solicitors General and Assistants to the Solicitor General, participate in preparing the petitions, briefs, and other papers filed by the government in the Supreme Court. The Solicitor General conducts the oral arguments before the Supreme Court. Those cases not argued by the Solicitor General personally are assigned either to an Assistant to the Solicitor General or to another government attorney. The vast majority of government cases are argued by the Solicitor General or one of the office attorneys.

Another responsibility of the Office is to review all cases decided adversely to the government in the lower courts to determine whether they should be appealed and, if so, what position should be taken. Moreover, the Solicitor General determines whether the government will participate as an amicus curiae, or intervene, in cases in any appellate court.

link

George Sutherland prior occupation is listed as U.S. Senator whe he served as "President of the American Bar Association from 1916 – 1917."

You could most likely dig into the background of everyone listed and find relevant and credible experience.

Charles Evans Hughes:

In 1891, Hughes left the practice of law to become a professor at the Cornell University Law School, but in 1893 he returned to his old law firm in New York City. At that time, in addition to practicing law he taught at New York Law School with Woodrow Wilson. In 1905, he was appointed as counsel to a New York state legislative committee investigating utility rates. His uncovering of corruption led to lower gas rates in New York City. As a result, he was appointed to investigate the insurance industry in New York.

[Lyric]

22. But none of it involved being a judge.

Of course they were all experienced in the legal world. I never claimed otherwise. But the specific idea that I was addressing is the one that says a SCOTUS nominee needs to have experience being a judge. I reject that, and I offer examples of justices who were NOT judges prior to being appointed to the SCOTUS.

Frankly, I'm ready to go back to the standard of competence and scholarship, rather than experience and cynicism.

[ProSense]

23. The list doesn't offer any clue that some of these people

had extensive legal backgrounds specifically related to the courts. Listing someone simply as a Governor or Congressman. Earl Warren was Governor of California, but he was also the state's Attorney General:

Attorney General of California
Nominated by the Democratic Party, the Progressive Party, and his own Republican Party,<3> Warren was elected Attorney General of the State of California in 1938.<2> Once elected he organized state law enforcement officials into regions and led a statewide anti-crime effort.<3> One of his major initiatives was to crack down on gambling ships operating off the coast of Southern California.<3> Following the United States entry into World War II after the Japanese Attack on Pearl Harbor, Warren organized the state's civilian defense program.<3> As Attorney General, Warren is most remembered for his support of Japanese internment, which was the policy of placing Japanese Americans in internment camps during World War II.<4> Throughout his lifetime, Warren maintained that this seemed to be the right decision at the time.<4> He did, however, admit in his memoirs that it was a mistake.<4>

[Lyric]

24. I am aware of this, and posted it earlier here:

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=5589828&mesg_id=5590106

[democrat2thecore]

25. I agree - my dark horse pick: Tom Geoghegan

Wouldn't that be something?????

[underpants]

26. I've got a pretty good shot huh?

:bounce: