Supreme Lawyers? Supreme Judges?

Supreme-Court.jpgOne of my favorite recurring features on Eric Turkewitz’ New York Personal Injury Law Blog is his vetting of Supreme Court nominees. During the underwhelming Sotomayor nomination, he sniffed out some ethical issues about the billing of her firm as “Sotomayor & Associates,” when there were, in fact, no associates. (You’ve got to wonder what Congressional aides are doing when Eric, while running a private practice, manages to run through Sotomayor’s questionnaire and issue-spot the problem areas before you hear anything from Capitol Hill about it).
Anyways, this week came his vetting of Supreme Court nominee Elena Kagan. What jumped out at me were two sentences from Eric’s summary of Kagan’s response to the Senate Judiciary Committee’s lengthy questionnaire: “She concedes never having tried a case to verdict. That wouldn’t be so bad, of course, if the high court had other individuals who had done so for private individuals.”
It may come as a surprise to most non-lawyers, but a good deal of your appellate court judges have never tried a case. That wasn’t news to me but I was a little taken aback by the fact that none of our current Supreme Court has ever tried a case for an individual client.
Going back in my mind, the most recently appointed justice whom I know to have tried a case is Lewis Powell, who was nominated in 1971. (The political backstory to Powell’s nomination is told in Bob Woodward’s indispensable The Brethren).
In April, law professor Orin Kerr penned this very funny post about “Obama’s Diverse Shortlist” of Supreme Court nominees. As Kerr noted:
No matter who he chooses, Obama will continue to break new ground, or at least help bolster some of the low numbers of people of certain arguably underrepresented backgrounds on the current Court. For example, Elena Kagan would become only the second former Harvard professor presently on the Court (joining Justice Breyer). Either Kagan or Wood would be only the second Chicago professor (joining Justice Scalia). Further, Merrick Garland would be only the second Justice on the Court who went to Harvard College; then Harvard Law School; then clerked for Henry Friendly; then clerked at the Supreme Court; and then worked at DOJ and was a partner at a big DC law firm before serving on the DC Circuit (joining Chief Justice Roberts).
Elena Kagan would also bring notable educational diversity to the Court. Kagan would be the very first Justice ever to have attended Princeton and then Harvard Law. Obviously, that would be a major break after two consecutive nominees who had attended Princeton and then Yale Law (Justices Alito and Sotomayor). Whoever Obama picks, I think it’s clear that Obama faces a major choice and that his selection will be a historic occasion.

The lack of diversity in Supreme Court nominees’ legal credentials can, at times, be funny, but it’s also a serious issue. Appeals court judges apply a variety of legal doctrines to avoid having to reach the merits of arguments that are before them. For example, they’ll say that an appealing party waived the right to make an argument on appeal by not sufficiently objecting at the trial court level, or by failing to renew the objection at the proper time.
Sometimes these legal rules make sense. After all, if you could raise any new argument on appeal, trial lawyers would be incentivized to go with their strongest argument and to keep other arguments as “fallbacks” to raise on appeal if they lose at trial. No one would want that inefficient system.
But….enforcing these doctrines requires a certain bit of empathy and a certain bit of discretion. And if the appellate judge has never stood in a trial lawyer’s shoes and known the chaos, the distractions of trying a case to a jury, that understanding may be lacking.
Kagan deserves to be confirmed because she is the President’s choice and she is a capable legal mind within the legal mainstream. But someday perhaps we might benefit from a re-envisioning of the qualifications for the Supreme Court.