Entry: Working up the ladder Wednesday, July 27, 2005

Unless you've been living under a rock lately, I'm sure you're aware that President Bush has nominated John Roberts to replace retiring Judge Sandra Day O'Connor.  Now, I'm not going to get into the politics and such of whether or not I feel Roberts is a good choice.  I usually try to stay away from political "debates" on my blog, because they invariably deteriorate into arguments and name-calling. 

But, something caught my attention that I found rather curious.  I noticed that Mr. Roberts' only judicial experience (i.e., being a juror/judge) has been serving the past 2 years in the US Court of Appeals.  Two years.  That's it.  Before that, he was a lawyer.  Just a lawyer (no offense to you lawyerly types out there--not trying to sound like I'm demeaning your profession).

Now, call me crazy, but I had always been under the impression that Supreme Court Justices were always well seasoned, experienced jurors.  I figured that on their way to the SCotUS, they served as justices in Superior Courts, maybe State Supreme Courts, and of course the US Courts of Appeals for a good number of years.  It just kinda made sense to me that we'd want people with tons of experience weighing both sides of an issue and making a decision, rather than just experience arguing one side or the other.

Quite honestly, this was something that concerned me a bit about Roberts.  Especially when I started hearing more commentators say such things as (paraphrasing) "You can't use his record as a lawyer as a basis for determining his stance on issues, because in that role he's simply doing the job he was paid to do, not necessarily supporting the issue itself on a personal level."  Now, leaving the whole "huh?" part of that statement out (IMO, a lawyer shouldn't be taking a case if he doesn't support his clients and their contention--otherwise, he's just being a greedy s.o.b. with no ethics--again, just my opinion), it made wonder how the people making this comment suggested we gauge Roberts' record.  After all, his record as a judge is a mere 2 years . . . hardly enough to form a record on which to determine if he was good Supreme Court material, right?

Then I decided to take a look at the "resumes" of our current Supreme Court.  And I found it somewhat interesting.  Justices Kennedy, Souter, Ginsburg and Breyer have the kinds records that I was expecting, each serving 12-14 years as judges at various levels.  Stevens' and O'Connor's records are a bit lighter, but still sufficiently long, I suppose, at 5 & 7 years, respectively.  But Scalia and Thomas have surprisingly short records as pre-SC justices . . . 4 years for Scalia, and a mere 1 year for Thomas.  The biggest shocker, really, was Chief Justice Rehnquist, who didn't serve a single day as a judge before being appointed to the SCotUS.

So I guess my worry about Roberts not having enough experience isn't all that justified, since it's not that uncommon.  But it does make me wonder if there shouldn't be some kind of "judicial ladder" or somesuch.  Personally, I think I'd feel better having a new SC Justice appointed who had 7-10 years of experience deciding and presiding over cases.  Then again, a lawyer who argues cases frequently before the SCotUS probably has a better understanding of Constitutional law than a Superior Court Judge.

Anyway, was wondering what some of you others thought.  Should there be a sort of "minimum years experience" as a judge before qualifying as a Supreme Court nominee?  If so, what's reasonable?  10 years?  7?  5?  Should all of those years be served at the US Court of Appeals level, or should it include time served at the State Supreme Court and Superior Court levels?  Does it really matter?


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July 28, 2005   03:59 PM PDT
Again, the whole arguing for a client is why you can't use the legal arguments made against a person. During the lifespan of an attorney, he or she will take thousands of cases and if ONE might possibly take him or her to the SC, even if he or she doesn't fully believe what they are saying, they'll go anyway and argue to the best of his or her abilities. A client hires an attorney to do a job, whether it be in local circuit (or superior) courts or all the way to the SC. You can't just drop the client because "Oh, this argument might go to the SC and I don't fully believe in it..." The truth is, the Constitution is one of those documents that has a lot of give and if he didn't take that argument to the SC level, someone else, at some point, would. It's not fair to expect an attorney to stop and say "You know, we could argue this loophole and try to win, but I don't really think it's within my moral standards to do so, so I have to stop representing you." SO, in sum, as an attorney, if I found one of those potential loopholes that would take me to the SC, I'd go wheter I believed in it or not. We're paid to do a job and perform a service, not teach people what's morally correct. In your job, do you ALWAYS do exactly what you think is right, or do you do what you're asked to do? It's the same thing.

The entire point of the confirmation hearings is to ask the questions about his stance on issues. But there is one little thing the public seems to be forgetting. There's not just ONE SC justice....the reason we have so many is to make sure the law is upheld and interpreted correctly. I can read one document, and you can read the very same one, and we can completely disagree on what it says. The point of the SC is to have a majority ruling which best encompasses the truth behind the law. He's really not going to make that big of a difference when he goes on the bench. Now, if 5 justices retired and Bush were nominating 5 highly conservative men, I'd say we have a problem. But one guy...in the scheme of things, just doesn't change much.
July 28, 2005   08:48 AM PDT
Mandy: To clarify . . . I understand that lawyers take on cases that they may not agree with from an ethical/moral standpoint, but must in order to uphold our legal system. But when discussing cases that are argued before the Supreme Court, it's a little different matter. It's not (at least not usually) a situation where the lawyer is defending a specific individual in a specific circumstance, nor is it a case of morally objecting to a client's actions but supporting their legal right to it. In SC cases, the argument is about the very Constitutional right of their client. If a lawyer believes his client has no Constitutional right to something, then how can he/she possibly argue for the client? To do so would be to betray the very foundation of the legal system they are supposed to be upholding.

But, leaving that aside for the moment, if you agree with the claim that a lawyer's record can not be used to reliably gauge his/her stance on Constitutional issues, then would you not agree that it is even more important to select a SC justice who has bench experience? For how else is it possible to determine IF this person has the capability to properly comprehend and analyze the law? To weigh the issues and come to the proper LEGAL conclusion? How do we know whether or not this particular person is truly capable of comprending the law and not simply twisting/exploiting it to his/her own ends? How do we know whether the lawyer who defends a car theif really believes car theft is okay, or if he's just defending his client out of need?
July 27, 2005   03:56 PM PDT
As a lawyer, I can tell you we won't always take cases that we support 100%. A lawyer can't pick and choose like that. I don't agree with adult children of sick parents selling their mom's home to get money to pay hospital bills, but I still will represent someone in a petition for guardianship and conservatorship. Why? Because in order to make money in the legal profession you have to do what people will pay you to do. You can't limit your representation to the things you believe in all the time. So, his experience as a lawyer shouldn't be used against him (sure, he argued that abortion should be illegal, but that doesn't mean he believes it...lawyers are an extension of their clients when in a court room, nothing more, nothing less). A law school prof once told me that the only way to be a good lawyer is to let go of your beliefs when a client tells you theirs. Granted, if it's something TOTALLY off base of what you believe in (Like "I should be able to kill A for taking my gum," then you can say no. However, if everyone said no, no one would ever be represented in a criminal case because how many of us think "Yeah, it was ok to steal that car, you were tired of walking.")

THAT being said, the number of years on the bench is not that important of a factor in my mind. Knowing the law and being able to comprehend and analyze it are. You learn that in law school (and life).
July 27, 2005   09:57 AM PDT
A supreme court justice doesn't even require any judicial experience, just the knowlege of the constitution. So anyone who's been to law school is technically qualified.
July 27, 2005   09:09 AM PDT
*Crawls out from under rock*
July 27, 2005   08:50 AM PDT
I agree, I think there should be a minimum years experience requirement! I don't know this guy they've put in there and the press is dubious at best at presenting unbiased facts... I'm sick of having my fate in the hands of people I don't know anything about.

Love your new format btw...

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