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Miers Is Not Unqualified From Lack of Judicial Experience

by Last Night in Little Rock

The pundits, even the late night talk show hosts, are harping on Supreme Court nominee Harriet Miers' lack of judicial experience. Everyone should know that this is NOT a disqualification if she has the mind for and the ability to handle the job. What are her skills as a legal thinker? Has she proved them? Those should be the primary questions, not whether she knows the right person or asked Bush for the job.

About half of all Supreme Court Justices lacked prior judicial experience. Most of the recent ones had some judicial experience, but some significant ones did not. Let's just work backwards:

President Nixon appointed two without prior judicial experience on the same day: Chief Justice Rehnquist was in the DoJ Office of Legal Counsel when he was appointed Associate Justice on January 7, 1972, and he served until September 3, 2005.

Lewis Powell, appointed the same day, had no prior judicial experience. He served until June 26, 1987.

Abe Fortas, sworn in October 4, 1965, appointed by President Johnson, had no prior judicial experience. He was a lawyer in D.C. Before being appointed to the Court, Fortas was appointed by the Court to brief and argue Gideon v. Wainwright, 372 U.S. 335 (1963), after Gideon's pro se cert. petition was granted. (He was pressured to resign because of "problems" with his personal finances, and Chief Justice Warren supposedly persuaded him to do so.)

Arthur Goldberg, sworn in October 10, 1962, appointed by President Johnson, had no prior judicial experience. He served until July 25, 1965. He was Secretary of Labor when appointed.

Bryon White, sworn in April 16, 1962, appointed by President Johnson was an Assistant U.S. Attorney General and had no prior judicial experience. He served until June 28, 1993.

Most important, at least to me, is Chief Justice Earl Warren, appointed by President Eisenhower and sworn in on August 5, 1953. He was Governor of California, and he had no prior judicial experience. I submit that he was appointed precisely because he was a politician, and he had the ability to achieve the consensus necessary to issue Brown v. Board of Education, 347 U.S. 483 (1954). Warren also wrote Gideon, New York Times v. Sullivan, 376 U.S. 254 (1964), Sheppard v. Maxwell, 384 U.S. 333 (1966), Miranda v. Arizona, 384 U.S. 436 (1966), Katz v. United States, 389 U.S. 347 (1967), and Terry v. Ohio, 392 U.S. 1 (1968). Warren served until June 23, 1969.

I'll just stop there. There are others before them as shown here.

Others had "minimal" appellate judicial experience, a relative term, including: John Marshall Harlan (the Second, 1965-71), over a year on the Second Circuit. He was a brilliant jurist. Also on that list would be Clarence Thomas who served a little over a year on the D.C. Circuit after coming from the EEOC. If "a short time" is "minimal," some might include Chief Justice Roberts with two years on the D.C. Circuit. Even Sandra Day O'Connor served four years as a trial judge and two years on the Arizona Court of Appeals. William Brennan had similar experience on the New Jersey Supreme Court, but a few years longer.

The real question should be: How much appellate experience does the nominee have as a lawyer, judge, or both. Harriet Miers, according to Westlaw, has argued three federal and four state appellate cases, and none in the Supreme Court. John Roberts, by contrast, argued at least 35 times in the Supreme Court. That is a test of his ability, whether you agree with his positions or not.

I've argued 35 times more appeals than Miers, and twice in the U.S. Supreme Court. But don't come calling, W, because I'd never be confirmed by anybody because I would answer the question about views on all the controversial issues. Besides, I wouldn't want the job, even if it does have a nice retirement package. I'm having far more fun being a criminal defense lawyer. That is my life's calling.

< Harriet Miers Writing on Criminal Justice | Harriet Miers: Pro-Life and Pro-Roe v. Wade? >
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    Re: Miers Is Not Unqualified From Lack of Judicial (none / 0) (#1)
    by chemoelectric on Sat Dec 17, 2005 at 01:04:42 PM EST
    Hmm, it seems Lyndon Johnson had a time machine. If any politician was going to have one, I guess it would be Lyndon Johnson.

    While experience as a judge isn't necessary, it would sure be reassuring if the nominee had some nonjudicial distinction to make up for the lack of judicial experience. Most of the examples you list above very clearly did--think also of people like Thurgood Marshall or Brandeis (enormously distinguished litigators), Frankfurter (famous law professor) or even John Marshall (Secretary of State). I don't see much of that with Meirs

    Re: Miers Is Not Unqualified From Lack of Judicial (none / 0) (#3)
    by wg on Sat Dec 17, 2005 at 01:04:42 PM EST
    I wouldn't normally recommend reading anything by George F. Will (political and linguistic anachronism imho) but this WaPo piece on Miers' qualifications is noteworthy for its indignant denials of such and the amount of scorn he hurls at George the Magnificent. Both apparently shared by a growing fraction of the "values" crowd.

    Re: Miers Is Not Unqualified From Lack of Judicial (none / 0) (#4)
    by Peter G on Sat Dec 17, 2005 at 01:04:42 PM EST
    Also without judicial experience, among many others, Tom Clark (Texas conservative politician turned solid Warren court member) and William O. Douglas (iconoclastic civil libertarian and environmentalist jurist). Minimal experience (local, minor trial-level judge only, who never handled appeals much less the type of cases that come to the Supreme Court): Hugo Black (former Klan member, became great civil libertarian) and Frank Murphy (excellent civil rights jurist of 1940s to early '50s).

    A lot of horse's rear-ends cross the finish line, but few of them have noses that place. The point is that Bush has no qualifications for choosing a justice. If not for the five justices who foisted him on the country (and destroyed their careers in the process), these kinds of lowball choices wouldn't be before the nation. There are HUNDREDS of qualified jurists and brilliant lawyers, female and male, who are better choices for an actual SCOTUS. But if what we're to have is no impeachment rights and no legal elections, then it's WHATEVER BOOB THE BOOB CHOOSES. Why not choose a crony who was involved in his vote-fraud felony rise to power? He would nominate his horse, if he could ride. It's been done before.