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Thread: The Supreme Court Needs a Justice Who Isn't a Lawyer

  1. #1 The Supreme Court Needs a Justice Who Isn't a Lawyer 
    Forum Professor arKane's Avatar
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    I read this article in a Big Think Blog in support of this concept.

    http://bigthink.com/ideas/21753

    After reading this article I have to agree that having a justice who isn't a lawyer in the Supreme court sounds like a very good idea. I would be interested in knowing if there might be other supporters of this concept in this forums community of ideas and opinions.


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    i glanced over the article. they made some very good points. the court needs to have a well rounded base of experience to draw from when deciding on some issues. there are many other problems with the supreme court that seem just as important though, for instance the fact that it is the only head of a branch of our government that is not subject to voting. judges are selected by the president and approved by congress. if court nominations were run by a popular vote (none of that electoral college nonsense) then anyone could try to get on the ballot and get elected.


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    Quote Originally Posted by saul
    i glanced over the article. they made some very good points. the court needs to have a well rounded base of experience to draw from when deciding on some issues. there are many other problems with the supreme court that seem just as important though, for instance the fact that it is the only head of a branch of our government that is not subject to voting. judges are selected by the president and approved by congress. if court nominations were run by a popular vote (none of that electoral college nonsense) then anyone could try to get on the ballot and get elected.
    That sounds interesting, but the idea of people campaigning for that job doesn't sound kosher. But how about this idea. The president selects 3 to 5 candidates and congress approves them, then they all post their resumes along with comments about why they want the job and what they want to accomplish and then let the people select who they like best without all the campaign BS.
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    Quote Originally Posted by saul
    if court nominations were run by a popular vote (none of that electoral college nonsense) then anyone could try to get on the ballot and get elected.
    I would say this is the strongest argument against that idea.

    Quote Originally Posted by Lance Wenban
    That sounds interesting, but the idea of people campaigning for that job doesn't sound kosher. But how about this idea. The president selects 3 to 5 candidates and congress approves them, then they all post their resumes along with comments about why they want the job and what they want to accomplish and then let the people select who they like best without all the campaign BS.
    How would this eliminate the "campaign BS"? There would be just as much campaigning - if not more as there will be more than 1 other major candidate to try get votes from as it is in current presidential elections.

    Another practically issue present in this argument is that just getting 1 justice approved by Congress is a long and arduous process - multiplying it by 5 would take forever. If they sought to reduce the amount of vetting that goes into that process, one could argue that those candidates would be subject to less examination and the 'approval' of that candidate wouldn't mean as much anyway.

    Quote Originally Posted by Lance Wenban
    After reading this article I have to agree that having a justice who isn't a lawyer in the Supreme court sounds like a very good idea. I would be interested in knowing if there might be other supporters of this concept in this forums community of ideas and opinions.
    How would one decide what the vocation or speciality of this new justice would be?

    The whole point of a 'judge' is that they are impartial - having a non-judge on the Supreme Court would negate the idea of an impartial court. Also, how would you expect the non-judge to rule on cases that are 'autarkic' ("legal issues [that] are strictly technical and internal to law")?

    If it comes down to an idea that the Supreme Court is not well-rounded enough, the issue should be around the judges chosen and the well-roundedness of the current federal judges that make up the pool of nominees.
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    Quote Originally Posted by JX
    How would one decide what the vocation or specialty of this new justice would be?
    One wouldn't decide what the vocation or specialty would be. The decision would be about the man or woman and what talent he or she would bring to the office and that would be handled the same as any other Supreme Court choice would be.

    The whole point of a 'judge' is that they are impartial - having a non-judge on the Supreme Court would negate the idea of an impartial court. Also, how would you expect the non-judge to rule on cases that are 'autarkic' ("legal issues [that] are strictly technical and internal to law")?
    Impartial, if that were really the case why is it so important which president makes the choice? Also where was anything said about a non-judge? I believe the term non-lawyer was used, and that's not the same as non-judge. In the first place lawyers are not the only people that know the law.

    If it comes down to an idea that the Supreme Court is not well-rounded enough, the issue should be around the judges chosen and the well-roundedness of the current federal judges that make up the pool of nominees.
    Based on this last question, it sounds like you didn't read the original article or you completely missed the point that was being made.
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    Quote Originally Posted by Lance Wenban
    One wouldn't decide what the vocation or specialty would be. The decision would be about the man or woman and what talent he or she would bring to the office and that would be handled the same as any other Supreme Court choice would be.
    That was more of a hypothetical question - the point being that everyone would have an agenda and want a certain speciality brought to the court, or kept out of it.

    What kind of "talent" would you want to bring to the court that only a non-judge would have?

    Quote Originally Posted by Lance Wenban
    Impartial, if that were really the case why is it so important which president makes the choice? Also where was anything said about a non-judge? I believe the term non-lawyer was used, and that's not the same as non-judge. In the first place lawyers are not the only people that know the law.
    Apologies for using the term non-judge, but that doesn't change my counter-point on that issue - you've countered on semantics instead of the point I made - being how that justice would handle 'technical' law cases? Lawyers have proven that they know the law, and that is important.

    Quote Originally Posted by Lance Wenban
    Based on this last question, it sounds like you didn't read the original article or you completely missed the point that was being made.
    Please explain why you believe this to be the case and what you believe is 'the point'.

    My point was that you'd have to go to an individual level and each candidate would have to have his/her well-roundedness assessed in isolation - you can't just say well now we'll have an accountant on the court because that's diversity.
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    Quote Originally Posted by JX
    Quote Originally Posted by Lance Wenban
    One wouldn't decide what the vocation or specialty would be. The decision would be about the man or woman and what talent he or she would bring to the office and that would be handled the same as any other Supreme Court choice would be.
    That was more of a hypothetical question - the point being that everyone would have an agenda and want a certain speciality brought to the court, or kept out of it.

    What kind of "talent" would you want to bring to the court that only a non-judge would have?

    Quote Originally Posted by Lance Wenban
    Impartial, if that were really the case why is it so important which president makes the choice? Also where was anything said about a non-judge? I believe the term non-lawyer was used, and that's not the same as non-judge. In the first place lawyers are not the only people that know the law.
    Apologies for using the term non-judge, but that doesn't change my counter-point on that issue - you've countered on semantics instead of the point I made - being how that justice would handle 'technical' law cases? Lawyers have proven that they know the law, and that is important.

    Quote Originally Posted by Lance Wenban
    Based on this last question, it sounds like you didn't read the original article or you completely missed the point that was being made.
    Please explain why you believe this to be the case and what you believe is 'the point'.

    My point was that you'd have to go to an individual level and each candidate would have to have his/her well-roundedness assessed in isolation - you can't just say well now we'll have an accountant on the court because that's diversity.
    The point for me is the article made sense, however I'm not an expert on this issue and was hoping to pick up some additional insight on this by listening to what others thought on this subject. So some of the questions you are asking, I would like to know the answers to myself.

    I've been known to post interesting topics without knowing all the answers, with the hope that I could learn a little more than I currently know. So if I can't answer all your questions please forgive me.
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    Quote Originally Posted by Lance Wenban
    The point for me is the article made sense, however I'm not an expert on this issue and was hoping to pick up some additional insight on this by listening to what others thought on this subject. So some of the questions you are asking, I would like to know the answers to myself.

    I've been known to post interesting topics without knowing all the answers, with the hope that I could learn a little more than I currently know. So if I can't answer all your questions please forgive me.
    Leaving aside for a second your deliberate intention to post in a discussion forum without any intention of participating - you did begin to reply to a discussion that you yourself started, and now you're backing off because?

    I am no 'expert' either, but since this topic is more opinion than technicalities, you really don't need to be. Half the fun of learning here is participating in the debate - in the end I don't really think it matters that we solve the problem of an unbalanced Supreme Court.
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  10. #9 Re: The Supreme Court Needs a Justice Who Isn't a Lawyer 
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    Quote Originally Posted by Lance Wenban
    After reading this article I have to agree that having a justice who isn't a lawyer in the Supreme court sounds like a very good idea. I would be interested in knowing if there might be other supporters of this concept in this forums community of ideas and opinions.
    Sounds silly to me. Do we also want non-dentists working on our teeth because we place a higher priority on diversity instead of topic specific knowledge and training? What about having construction workers do our heart surgeries? Is that a good idea, too? Or how about letting ballet dancers do our brake jobs and high school drop-outs teach advanced topics in university? Yep... Sounds like the right way to go in my book. Let's pick the least qualified people to do the most important jobs because of some immediate term focus on diversity and balance. Yay humans! We're like smart, and stuff.

    Stupid, really. That's my view. Judges review cases of law. Understanding law is a prerequisite. Ergo, having non-lawyers is s a dip shit notion born of myopic viewpoints and inaccurate representations of reality... representations of reality using proverbial blinders. Let's not miss the forest for the trees, eh?
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    Quote Originally Posted by JX
    Leaving aside for a second your deliberate intention to post in a discussion forum without any intention of participating - you did begin to reply to a discussion that you yourself started, and now you're backing off because?

    I am no 'expert' either, but since this topic is more opinion than technicalities, you really don't need to be. Half the fun of learning here is participating in the debate - in the end I don't really think it matters that we solve the problem of an unbalanced Supreme Court.
    I wasn't intending to back off, but if you want hard answers I'm not your man on this subject. I do believe any well educated person with a proven track record in areas that people consider important could serve as a supreme court justice. Common sense and a willingness to really understand the issues at hand before making any decision would be considered a major asset by me, and the idea of at least one non-lawyer on the supreme court sounds very attractive to me. The character of the man or woman is as important as the skills and knowledge they will be bringing to the table. If you want to get more specific about important skills and knowledge well I'm in over my head there.
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  12. #11 Re: The Supreme Court Needs a Justice Who Isn't a Lawyer 
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    Quote Originally Posted by inow
    Sounds silly to me. Do we also want non-dentists working on our teeth because we place a higher priority on diversity instead of topic specific knowledge and training? What about having construction workers do our heart surgeries? Is that a good idea, too? Or how about letting ballet dancers do our brake jobs and high school drop-outs teach advanced topics in university? Yep... Sounds like the right way to go in my book. Let's pick the least qualified people to do the most important jobs because of some immediate term focus on diversity and balance. Yay humans! We're like smart, and stuff.

    Stupid, really. That's my view. Judges review cases of law. Understanding law is a prerequisite. Ergo, having non-lawyers is s a dip shit notion born of myopic viewpoints and inaccurate representations of reality... representations of reality using proverbial blinders. Let's not miss the forest for the trees, eh?
    Okay that's a strong opinion, but those comparisons you made seem way out of context to this particular subject. No one is suggesting that all the justices be non-lawyers, just to add one well qualified non-lawyer to the supreme court. I seem to remember reading in that article that in the past non-lawyers have been appointed to the supreme court and they preformed quite well. Yes that is hearsay information, but I'll take it as accurate unless shown to be wrong.
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  13. #12 Re: The Supreme Court Needs a Justice Who Isn't a Lawyer 
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    Quote Originally Posted by Lance Wenban
    I seem to remember reading in that article that in the past non-lawyers have been appointed to the supreme court and they preformed quite well. Yes that is hearsay information, but I'll take it as accurate unless shown to be wrong.
    I believe you may be referring to Chief Justice Earl Warren.

    http://en.wikipedia.org/wiki/Earl_Warren


    If so, then you seem to have your facts a bit twisted.

    What you may be thinking is how Warren was never a judge prior to being appointed as Chief Justice on the SCOTUS, but what you're misunderstanding is that he WAS most certainly a lawyer before that appointment.



    NPR has a piece on this nearly two years ago which was published during the Sotomayor confirmation process. From their link:


    http://www.npr.org/blogs/politicalju...reme_cour.html

    As it turned out, President Obama has nominated Sonia Sotomayor, a judge on the U.S. Court of Appeals, to fill a soon-to-be-vacant seat on the Supreme Court. But he could have picked someone with no legal experience at all.

    And that leads to this question from Allen Ayers of Williamsburg, Va.:

    The United States Constitution contains no prerequisites for appointment to the Supreme Court. How many U.S. Supreme Court justices have not been lawyers and what were their names?
    You are certainly correct about qualifications (or lack of same) to be considered for the Supreme Court. But every single justice on the court, dating back to John Jay, has been a lawyer; each one either attended law school, took law classes, was admitted to the bar, or practiced law.
    For context, John Jay was the first chief justice and he served back in 1789.


    So, it's not only just hearsay, but it's also inaccurate and wrong. :wink:
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    @ inow

    Given your strong feelings on this subject, could you agree with the last paragraph of the article?


    Even if one thinks that appointing non-lawyers to the Court is too radical, at a minimum, one might diversify the Court's informational base by appointing Justices who possess some form of dual competence—legal training plus credible expertise in some other discipline or subject matter. Suppose we accept that appointees must be lawyers who have served as judges. Why not look outside the ranks of the generalized federal judiciary, and instead consider appointees who have served on one of the many more specialized federal tribunals—the Tax Court, the many administrative courts, the Federal Circuit (which handles patents, other intellectual property matters, and certain money claims against the government), or the system of military courts? Even within the class of generalist federal judges, what about appointing a Justice who has dual competence—perhaps someone with a second degree in finance, accounting, economics, medicine, environmental sciences, or engineering, or a former military lawyer? The political incentives to nominate candidates only from a pool defined in the narrowest of terms are powerful, intelligible, and damaging.
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    Well, I sort of question their premise. We DO look to various people with various experiences. We don't select from a tiny pool of people with the same criteria and background. The selections are not made from a population "defined in the narrowest of terms," and to suggest somehow that all (or even most) nominations fit this description is laughable.

    Yes, we need some diversity in the courts.
    Yes, we need some people from various backgrounds.
    Yes, we need to look at people with more than one specific set of credentials or CVs.

    None of that is under debate, IMO. We do all of that already. From what I can tell, the suggestion that non-lawyers should be selected as justices seems to be a solution to a strawman of a problem.

    Are the judges we've currently been selecting failing somehow to appropriately perform their duties and execute their assigned functions? Is the system somehow failing to adequately address the issues it was put in place to handle? Are decisions being made on something other than the laws themselves?


    Perhaps we can focus there and come to some sort of reasonable consensus prior to attempting to fix what ain't broke.
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    Quote Originally Posted by inow
    Well, I sort of question their premise. We DO look to various people with various experiences. We don't select from a tiny pool of people with the same criteria and background. The selections are not made from a population "defined in the narrowest of terms," and to suggest somehow that all (or even most) nominations fit this description is laughable.

    Yes, we need some diversity in the courts.
    Yes, we need some people from various backgrounds.
    Yes, we need to look at people with more than one specific set of credentials or CVs.

    None of that is under debate, IMO. We do all of that already. From what I can tell, the suggestion that non-lawyers should be selected as justices seems to be a solution to a strawman of a problem.

    Are the judges we've currently been selecting failing somehow to appropriately perform their duties and execute their assigned functions? Is the system somehow failing to adequately address the issues it was put in place to handle? Are decisions being made on something other than the laws themselves?


    Perhaps we can focus there and come to some sort of reasonable consensus prior to attempting to fix what ain't broke.
    I can't deny anything you just said, but I was hoping for a larger cross section of opinion on this subject, and maybe I'll get it over a little more time.

    I've heard the arguments about not trying to fix what ain't broke many times in my life and I don't mind telling you I don't like it. Because I know that almost everything that ain't broke can be improved upon (IMO).
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    Quote Originally Posted by Lance Wenban
    I've heard the arguments about not trying to fix what ain't broke many times in my life and I don't mind telling you I don't like it. Because I know that almost everything that ain't broke can be improved upon (IMO).
    Change for change's sake does not correlate with improvement.
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    I agree with JX, but also want to clarify that I agree in spirit with Lance. We should always seek to improve the way we do things. Continuous improvement processes are generally required for advancement, and I don't negate that for a moment. I do think, however, that the changes must be intelligent and coordinated and should address specific challenges (not just be "change for the sake of change").

    Honestly, I just don't think adding non-lawyers to the court is a good mechanism to go about this. You haven't even identified the problem (except the assert that diversity is better), and the proposal seems to be targeting diversity for diversity sake, and doing so in a manner which has a huge potentially down-side (see my previous examples about non-trained people doing important work).


    I am also curious to hear the thoughts of others on this topic. Maybe I am being too quick to dismiss this?
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  19. #18  
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    Quote Originally Posted by JX
    Quote Originally Posted by Lance Wenban
    I've heard the arguments about not trying to fix what ain't broke many times in my life and I don't mind telling you I don't like it. Because I know that almost everything that ain't broke can be improved upon (IMO).
    Change for change's sake does not correlate with improvement.
    You are so right, change for change's sake can sometimes break what doesn't need fixing. Also, I personally don't know enough about the supreme court to even offer an opinion one way or the other. All I can say for sure is this article made an positive impression on me. One thing I do know about the supreme court is I definitely don't want to see the justice positions become elected positions. The idea of special interest supporting the election of a supreme court justice just doesn't sit well with me.
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    With all due respect, and even though I didn't read the entire blog, this blogger knows enough about law to be very dangerous.

    All justices at every level need to know law in order to work with it. Wanting a non-lawyer on the USSC is like wanting an interior decorator to design crashworthiness into our automobiles. Both would be a fish out of water -- and very, very frightening indeed. In the history of the court, all justices were either lawyers or studied law extensively, and only a few justices had not previously served as a bench judge, my favorite among them being Louis Brandeis.

    Imagine a USSC justice who doesn't know the rules of the court, or doesn't understand what appellate jurisdiction entails, or doesn't understand precedence or how to Shepardize a case, or doesn't know how to read a decision, or can't read legal writing, or can't understand the Latin legal terminology, or thinks a word means the same in legal circles as it does in everyday use, or doesn't know how to pick his/her clerks, or direct the clerks in their work, etc, etc. And what to do in cases of original jurisdiction?

    And wanting justices with multiple degrees would seriously limit the field from which to choose new justices. When a justice with a certain secondary degree retires, the pressure would be to find a replacement with someone with similar credentials. As it is, it's tough to balance the court. Besides, amici curiae already provide expert advice outside the typical knowledge of the justices.
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    Quote Originally Posted by jrmonroe
    With all due respect, and even though I didn't read the entire blog, this blogger knows enough about law to be very dangerous.

    All justices at every level need to know law in order to work with it. Wanting a non-lawyer on the USSC is like wanting an interior decorator to design crashworthiness into our automobiles. Both would be a fish out of water -- and very, very frightening indeed. In the history of the court, all justices were either lawyers or studied law extensively, and only a few justices had not previously served as a bench judge, my favorite among them being Louis Brandeis.

    Imagine a USSC justice who doesn't know the rules of the court, or doesn't understand what appellate jurisdiction entails, or doesn't understand precedence or how to Shepardize a case, or doesn't know how to read a decision, or can't read legal writing, or can't understand the Latin legal terminology, or thinks a word means the same in legal circles as it does in everyday use, or doesn't know how to pick his/her clerks, or direct the clerks in their work, etc, etc. And what to do in cases of original jurisdiction?

    And wanting justices with multiple degrees would seriously limit the field from which to choose new justices. When a justice with a certain secondary degree retires, the pressure would be to find a replacement with someone with similar credentials. As it is, it's tough to balance the court. Besides, amici curiae already provide expert advice outside the typical knowledge of the justices.
    Point taken, the one thing I do know about becoming a USSC justice is that anyone who gets that job really has want it, because the BS they have to go through to get it, would make most qualified people think twice or more about even accepting a nomination for the job. A rigorous public congressional interview is not something many of us would be willing to put up with, no matter how qualified we might be.
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