You Don’t Have To Be A Judge . . .

. . . to be on the Supreme Court, and therefore it doesn’t bother me one bit that Elena Kagan hasn’t served on the bench.  Over the years, many Supreme Court Justices, including some who had an enormous impact on the Court and its jurisprudence, had no prior judicial experience.

No, what bothers me is that the Court is populated exclusively by graduates of elite law schools and universities who have never had a private law practice.  Although there is diversity of race and gender on the Court, there really isn’t much diversity of perspective.  The Court can take only a small handful of cases each year, and it seems to devote an inordinate proportion of those cases to narrow constitutional issues, like whether World War I veterans’ erection of a cross on federal lands in the Mojave Desert violates the Establishment Clause of the First Amendment.  That may be an interesting academic question, but it doesn’t have much to do with the vast majority of Americans, or the vast majority of lawyers.

I’d love to see a President nominate a practicing lawyer who cares about resolving uncertainties about application of the rules of civil procedure and the rules of evidence, or the drafting of disclosures in SEC filings by public corporations.  We really don’t need another decision that revisits how Roe v. Wade applies in some specific factual scenario — but it sure would be nice to get a definitive ruling on how district courts should apply class certification standards.

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