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Thoughts on picking a non-judge for the Supreme Court
An interesting article in the National Law Journal.
I'd agree that the tend of the last few decades -- select only Federal Court of Appeal judges, on the theory that they have experience and a track record -- is one that treats judging as something separate from knowing the law. I compared the various Justices who sat on the Warren Court -- the days when Frankfurter and Black and Harlan sparred on the real meaning of the 14th Amendment, etc., and also the early years of the Rehnquist Court. I got:
Earl Warren – attorney general and governor of California.
Felix Frankfurter – private practice, then a law prof, and economic advisor to FDR.
Hugo Black – went straight from the US Senate to the Supreme Court. Judicial experience consisted of sitting as a police court judge for a year.
William O. Douglas – Law prof, then a seat on the Security & Exchange Commission.
John M. Harlan – private practice, ass’t US Attorney, and one year on a circuit court.
Bill Rehnquist – private practice, Ass’t Attorney General.
Lewis Powell – private practice
Thurgood Marshall – private practice, chief counsel for NAACP, four years on a Circuit court, then Solicitor General.
Thomas Clark – private practice, then Attorney General.
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If appointing a Fed Judiciary non-insider means less deference to the Slaughterhouse Cases, and less concern for how individual liberty may upset the established judicial order, I think I could support such an appointment.
Could their judicial philosophies be harder to predict, or just harder to assail?
Nothing says it has to even be a lawyer. My vote is for Walter Williams...an econ professor. I can't link to his GMU.edu page but you can google him.
Supreme Court Justice David T. Hardy, anyone?
I've thought for some time that those who have long judicial histories tend to be scared by the idea of overturning earlier decisions, even when they;re obviously bad. Why any modern jurist would still feel reluctant to overturn decisions such as Slaughterhouse or Cruickshank is beyond me. Then there are their 20th century cousins such as Wickard v Filburn.
My experience is that those in the legal profession have a difficult time getting out of the box in which their education placed them.
I liken most judges to 1) the blind guys describing the elephant or 2) a person, sealed in a box, who is trying to describe the outside without having ever seen it.
Now, I AM lumping all of them into a single pile. This may or may not be valid. But my experience is that "stare decisis" controls the system all too much. It is too bad lawyers are not able to utilize logic in the same manner as "good" scientists. The best thing about being a scientist is attacking the theories, laws, and works of every prior and current scientist in attempts to disprove what was stated. Law should follow the same reevaluation every time a particular point is questioned.
Yes, but the most important thing seems to be that the person went to Harvard or Yale.