What experience should we look for in a Supreme Court Justice?
The conventional wisdom in 2005 seems to be: years of experience as a judge in the federal court system. Counting Roberts, the most recent seven Justices have been appointed from a federal Circuit Court.
But that is not the historical standard. In fact, only 30 of the 109 Justices had experience on the federal bench before being confirmed for the Court. (The figures in this diary come from my tally of judicial biographies, primarily from this site. Arithmetic errors are my own.) Presidents and Senators have previously given more weight to broad experience in public life: 67 Justices had previously held state or federal elective office, and those who had not faced the voters had often served in the Cabinet.
Five Justices on the first, six-member Court had been elected to and served in the Constitutional Convention. John Marshall, who established the role of the Court in
Marbury vs. Madison, was a former Congressman and Secretary of State. It wasn't until 1845 that we had a Justice who had even attended law school. Fourteen Justices had previously been U.S. Senators, nineteen had served in the Cabinet.
Chief Justice Taft had no experience on the federal bench, but he had previously been President of the United States. Charles Evans Hughes resigned from the Court to run for President, and was later appointed again as Chief. Levi Woodbury ran for President while on the Court. William O. Douglas was on the `short list' for Roosevelt's VP nomination in 1944 while serving.
The Senate did not need to divine tea leaves to understand how such nominees viewed the role of government or what ideology they held. They had prominent public records, often working side-by-side with the Senators who were asked to confirm them.
When Sandra Day O'Connor, a former state Senator, steps down, for the first time in U.S. history there will be no one on the Court who has ever been elected to any public office.
This trend has been underway since Eisenhower's nomination of Governor Earl Warren in 1953. Of subsequent nominees, only Lewis Powell (school board) and O'Connor have held any elective office.
This is a very unhealthy trend. I believe that only a Court this divorced from the realities of the political process could have concluded in Jones v. Clinton that the case would not be a significant distraction for the President.
This trend also diminishes the stature of the Court.
Reid urged President Bush to nominate a public figure, e.g. a Senator or Governor, last time. We should demand such a nominee this time.