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Surprisingly Unperturbed by Miers

Among conservative bloggers, at least, the nomination of Harriet Miers to the Supreme Court seems a bit of a damp squib. I won't rehash what I'm sure everyone's heard already--no paper trail, no record, why didn't he nominate a really conservative nominee, if Kos likes her how good can she be?--as I don't have much to add. But one part of the argument doesn't concern me particularly, and that's Ms. Miers' "inexperience."

Professor Volokh points out that Miers' career track is not historically exceptional, but merely unlike the ex-academics and ex-judges who are more common on the Court today. Going even further back, there have been several Supreme Court justices that did not go to law school.

But personally, I would have liked to see Bush put forward a candidate who was not a lawyer at all. I can't think of an example of this in U.S. history, but the idea itself is not particularly revolutionary. The Supreme Courts of other countries include those who have not been admitted to their bar. For instance, Justice Kazuko Yoko of the Japanese Supreme Court was a career civil servant and ambassador before she came to the bench. (Quite a remarkable woman, actually, the second to sit on the Japanese Supreme Court.) Given that Justices have to be approved by plebicite at the first lower house election after their appointment, the very least one can say is that she's done well enough not to be removed. (That's much fainter praise than deserved, but I won't bore with her qualifications. I merely mean to prove that it seems one can competently judge at the highest level of a legal system without a legal education or a life as an attorney.)

On the other hand, Justice Yokoo's background is a tidbit that invariably evokes surprise when mentioned around the law school, often on about the same level as announcing that I had been appointed as the first non-Catholic in the College of Cardinals. It shouldn't be. The law, after all, isn't some mystical source of authority that requires robes, wigs, and special arcane knowledge to fathom. In a very workaday fashion, many professionals will come into constant contact with administrative, contract, or tort law, statutory interpretation, and other matters legal. Over a long career, it's possible to build up a great store of actual, pragmatic expertise. That's not to say that anyone can do it, or that any administrator would make a great judge. The Bar, however, is just an easy way of ensuring to the public that anyone who has passed it knows a certain amount of knowledge, a form of consumer protection. It does not prove that anyone who has not passed the bar lacks the requisite knowledge.

Those of us who have steeped ourselves in the law too often feel there's something uniquely special about our education: that "thinking like a lawyer" is somehow so unique from non-legal thinking and ordinary logic that no one from outside our circle could pick up the torch. That's possible, I suppose, but my intuition is that in fact our legal education and experience--and our tendency to exclude those who don't have it--create an isolating feedback effect. That is to say, it's not that any given issue has to be complex, but rather that an issue handled by people who are steeped in a tradition of complexity and are comfortable handling issues in a given manner will inevitably become complex. Not only do the institutional players have the capacity to handle complexity, but it is inevitably to their advantage to do so.

Adding a non-lawyer to the Supreme Court doesn't mean nominating someone without experience, knowledge, skill or wisdom. Indeed, of the judicial virtues mentioned by Prof. Solum, none actually require a judge that has attended a law school or served as an attorney. On the other hand, the presence of a non-lawyer ensures a different perspective on the Court, and quite possibly promotes values that are not stressed by a lawyer-centered jurisprudence. (For example, important Court rulings carry not only a legal effect, but also influence the populace at large. A different kind of Justice might put more stress on writing that tells a tale directly to the public, rather than for the attention of legal commentators.)

Now, perhaps a non-lawyer is too radical a suggestion. I'm sure an openness to a non-lawyer as Justice puts me outside the mainstream. But whatever the case, it does explain why Ms. Miers' job history does not disturb me much.


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A plumber, perhaps.
But personally, I would have liked to see Bush put forward a candidate who was not a lawyer at all. I can't think of an example of this in U.S. history, but the idea itself is not particularly revolutionary. This is an idea I've toyed with, and I wish some president had the 'nads to front such a nominee. Frankly though (and call me an elitist), such a non-lawyer nominee needs to be a distinguished scholar in some related discipline with a familiarity with the interaction of law and that discipline (e.g., a distinguished political scientist/con law scholar, an economist who's done work in law and economics, a distinguished legal historian or philosopher, or similar). My own reaction to "Justice Miers" is simply that she's a huge legal mediocrity and a huge unknown to just about everyone but Bush. Given what Bush stands for and what he's "accomplished" and (as importantly) not accomplished in his presidency to date, this disturbs me deeply.
oh boy, cronyism AND affirmative action. Hope she does a better job than 'Brownie' did.
This reminds me of the Pakistani proposal. oh boy, cronyism AND affirmative action I think Hatch's phrase was "diversity and depth." "She has broad professional experience that will provide a fresh perspective from outside the insular walls of the judiciary."

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