Judicial experience a fairly new expectation for Supreme Court

[JEDIYoda]

I would suspect that somebody who was or is Dean of the harvard law School without any experience sitting as a Judge would be very qualified to hold a seat on the US Supreme Court.

My Favorite line in these articles belongs to what Wheeler of the Brookings Institution characterized as the Republicans' "line of attack" on Kagan's nomination. For politicians who need a fight, some weapon must be found.

Or put in more understandable words -- a bunch of crybabys looking for a fight!!


http://news.yahoo.com/s/mcclatchy/20100511/pl_mcclatchy/3501661_1

interesting article.....

By Michael Doyle, McClatchy Newspapers Michael Doyle, Mcclatchy Newspapers – Tue May 11, 4:39 pm ET

WASHINGTON — Republicans are attacking Supreme Court nominee Elena Kagan for her lack of judicial experience, but they haven't always been so particular.

Forty Supreme Court justices have come to the court without any prior judicial experience, half of them serving during the 20th century. They've included some of the court's most distinguished alumni, as well as some political hacks.

Until now, though, senators haven't used judicial inexperience as a reason to oppose a president's nominee.

"It's a relatively new notion," said Russell Wheeler , a visiting fellow at the Brookings Institution , adding that "there has developed in this country the notion that the only recruitment pool for the Supreme Court is sitting judges, even though historically that's not been the case."

When Kagan was born in 1960, five of the Supreme Court's nine justices had no previous judicial service. All nine current justices were appointed from other court positions. The terms of confirmation battle have changed, as well.

In 1971, for instance, President Richard Nixon nominated Lewis Powell and William Rehnquist to fill two Supreme Court vacancies. Neither had ever served on the bench.

Congressional Republicans nonetheless embraced the nominees. Tellingly, they didn't feel a need to defend the lack of judicial experience. The issue simply didn't arise when Republican lawmakers spelled out their criteria for the court.

"Three considerations face this committee," Sen. John McClellan of Arkansas , the second most senior Democrat on the Judiciary Committee, said at a 1971 hearing. "Do these nominees have personal integrity? Do they possess professional competency? Do they have an abiding fidelity to the Constitution?"

McClellan's definition of competency had nothing to do with prior judicial service. Even Democrats ignored the candidates' judicial inexperience.

During the four-day Senate debate over Rehnquist in December 1971 , which spanned some 200 pages in the Congressional Record, the phrase "judicial experience" appeared only once, in a different context. When skeptical Democrats such as Sen. Edward Kennedy of Massachusetts pressed Rehnquist, they didn't ask him about judicial experience.

By contrast, the judicial experience theme has quickly become what Wheeler of the Brookings Institution characterized as the Republicans' "line of attack" on Kagan's nomination. For politicians who need a fight, some weapon must be found.

"Ms. Kagan's lack of judicial experience ... is troubling," declared Sen. Jeff Sessions of Alabama , the senior Republican member of the Senate Judiciary Committee .

Sessions' colleague, Republican Sen. John Cornyn of Texas , added that Kagan is "a surprising choice because she lacks judicial experience." Conservative analyst Ed Whelan of the Ethics and Public Policy Center denounced Kagan as having "less relevant experience than any Supreme Court nominee in over 50 years."

Whelan subsequently conceded that he wasn't counting Harriet Miers , President George W. Bush's White House counsel, who quickly withdrew her 2005 nomination under Capitol Hill skepticism. Even Miers , though, had her defenders at the time, including Cornyn.

"I thought she would fill some very important gaps in the Supreme Court ," Cornyn said at a news conference on Oct. 27, 2005 . "Because right now you have people who've been federal judges, circuit judges, most of their lives, or academicians."

President Franklin Delano Roosevelt nominated two Supreme Court justices whose backgrounds appear similar to Kagan's. Stanley Reed , who never graduated from law school, was promoted directly from the Solicitor General's Office in 1938. Felix Frankfurter joined the court in 1939 from the Harvard Law School faculty.

Kagan is currently the solicitor general, on leave from Harvard Law School .

Judicial inexperience wasn't raised as an issue for either Reed or Frankfurter, Senate records show. Both men raced to confirmation within days of being nominated, with essentially no debate.

A generation later, in 1965, President Lyndon Johnson nominated his longtime ally Abe Fortas , even though Fortas had never served on the bench.

Fortas drew criticism as Johnson's favorite political fixer — "Mr. Abe Fortas in recent years has developed a national reputation as the man to see in Washington to get things done," said Sen. John Williams , R- Del. — but the critics didn't fault Fortas for lacking judicial experience. They went after him on other grounds, which they evidently thought more relevant.

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http://mediamatters.org/blog/201005100018

Note to media: At least 38 of 111 Supreme Court justices had no prior judicial experience
May 10, 2010 10:42 am ET by Media Matters staff

Media figures have advanced the myth that judicial experience is a pre-requisite for a Supreme Court justice. In fact, two of the last four previous chief justices -- William Rehnquist and Earl Warren -- had no judicial experience when first nominated to the Court by Republican presidents. Neither did other famous justices, including Felix Frankfurter, Louis Brandeis, and John Marshall, known as the "Great Chief Justice."

Rehnquist, Warren, Frankfurter, Brandeis, and Marshall are far from alone. Indeed, according to Findlaw.com's Supreme Court Center, 40 of the 111 Supreme Court justices had no judicial experience when they were first nominated.

UPDATE: According to Henry J. Abraham's* book, Justices, Presidents, and Senators: A History of Supreme Court Appointments from Washington to Bush II, there were 38 justices with no prior judicial experience.

The list from Findlaw.com:


Name of Justice
Prior Occupations
Years On Court
Appointed By President:

1. William Rehnquist
Asst. U.S. Attorney General
1972-2005
Nixon (Assoc., 1972),
Reagan (Chief, 1986)

2. Lewis Powell
President of the American Bar Ass'n,
Private Practice
1972-1987
Nixon

3. Abe Fortas
Private Practice
1965-1969
Johnson

4. Byron White
Deputy U.S. Attorney General
1962-1993
Kennedy

5. Arthur Goldberg
U.S. Secretary of Labor
1962-1965
Kennedy

6. Earl Warren
Governor of California
1953-1969
Eisenhower

7. Tom Clark
U.S. Attorney General
1949-1967
Truman

8. Harold Burton
U.S. Senator
1945-1958
Truman

9. Robert Jackson
U.S. Attorney General
1941-1954
F. Roosevelt

10. James Francis Byrnes
U.S. Senator
1941-1942
F. Roosevelt

11. William O. Douglas
Chairman of the S.E.C.
1939-1975
F. Roosevelt

12. Felix Frankfurter
Asst. U.S. Attorney, Asst. Secretary of War, Prof. of Law at Harvard
1939-1962
F. Roosevelt

13. Stanley Forman Reed
U.S. Solicitor General
1938-1957
F. Roosevelt

14. Owen Josephus Roberts
Special Counsel in "Teapot Dome"
investigation and trials
1930-1945
Hoover

15. Harlan Fiske Stone
U.S. Attorney General
1925-1946
Coolidge (Assoc., 1925),
F. Roosevelt (Chief, 1941)

16. Pierce Butler
County Attorney, Private Practice
1923-1939
Harding

17. George Sutherland
U.S. Senator
1922-1938
Harding

18. Louis Brandeis
Private Practice
1916-1939
Wilson

19. James Clark McReynolds
U.S. Attorney General
1914-1941
Wilson

20. Charles Evans Hughes
Governor of New York,
U.S. Secretary of State
1910-1916,
1930-1941
Taft (Assoc., 1910),
Hoover (Chief, 1930)

21. William Henry Moody
U.S. Attorney General
1906-1910
T. Roosevelt

22. George Shiras, Jr
Private Practice
1892-1903
Harrison

23. Melville Fuller
Private Practice
1888-1910
Cleveland

24. Lucius Quintus Cincinnatus Lamar
U.S. Secretary of the Interior, U.S. Senator
1888-1893
Cleveland

25. Joseph Philo Bradley
Private Practice
1870-1892
Grant

26. Salmon P. Chase
U.S. Treasury Secretary
1864-1873
Lincoln

27. Samuel Freeman Miller
Private Practice
1862-1890
Lincoln

28. Noah Haynes Swayne
U.S. Attorney for Ohio, Ohio Legislator
1862-1881
Lincoln

29. Nathan Clifford
Maine & U.S. Attorney General
1858-1881
Buchanan

30. John Archibald Campbell
Alabama Legislator
1853-1861
Pierce

31. Benjamin Robbins Curtis
Massachusetts Legislator
1851-1857
Fillmore

32. John McKinley
U.S. Senator
1838-1852
Van Buren

33. Roger Brooke Taney
Maryland & U.S. Attorney General,
U.S. Treasury Secretary
1836-1864
Jackson

34. Henry Baldwin
U.S. Congressman
1830-1844
Jackson

35. Joseph Story
Speaker of Mass. House of Reps.,
U.S. Congressman
1812-1845
Madison

36. John Marshall
U.S. Secretary of State
1801-1835
Adams

37. Bushrod Washington
Virginia House of Delegates,
Reporter for Virginia Court of Appeals
1799-1829
Adams

38. William Paterson
Governor of New Jersey
1793-1806
Washington

39. John Jay
President of the Continental Congress,
U.S. Secretary of Foreign Affairs
1789-1795
Washington

40. John Rutledge
Governor of South Carolina
1789-1791, 1795
Washington

 

[NeoV]

never let facts get in the way of a GOP circle jerk

 

[BladeVenom]

When Bush nominated someone without judicial experience it was a big issue to the Democrats and the liberal media.

Nice to see it proven once again that the liberals are complete hypocrites and judicial experience only matter if its a conservative nominee.

 

[JEDIYoda]

that is very true....yet nobody in the GOP can show where a Supreme Court Justice with "no" judicial experience was any better or worse that a justice with experience on the bench....

 

[Moonbeam]

When Bush nominated someone without judicial experience it was a big issue to the Democrats and the liberal media.

Nice to see it proven once again that the liberals are complete hypocrites and judicial experience only matter if its a conservative nominee.

Links?

NBC News and news services
updated 1:39 p.m. PT, Thurs., Oct . 27, 2005
WASHINGTON - Under withering attack from conservatives, President Bush abandoned his push to put loyalist Harriet Miers on the Supreme Court and promised a quick replacement Thursday. Democrats accused him of bowing to the “radical right wing of the Republican Party.”

The White House said Miers had withdrawn because of senators’ demands to see internal documents related to her role as counsel to the president. But politics played a larger role: Bush’s conservative backers had doubts about her ideological purity, and Democrats had little incentive to help the nominee or the embattled GOP president.

“Let’s move on,” said Republican Sen. Trent Lott of Mississippi. “In a month, who will remember the name Harriet Miers?”

The withdrawal stunned Washington on a day when the capital was awaiting potential bad news for the administration on another front — the possible indictments of senior White House aides in the CIA leak case. Earlier in the week, the U.S. military death toll in Iraq hit 2,000 while consumer confidence in the economy took another plunge, reflecting Bush’s mounting political woes.

Democrats and Republicans braced for Bush’s next Supreme Court pick, which will be his third try since July 19. With Chief Justice John Roberts in place, the president had two pools of candidates from which to choose: Conservative jurists who received serious consideration last time or somebody outside what Bush calls the “judicial monastery,” perhaps a current or former senator who would be welcomed by the GOP-controlled Senate.

Bush wants hearings by Christmas
Bush promised a new nominee “in a timely manner.” Senate Majority Leader Bill Frist said he expected a replacement within days and wants to hold hearings by Christmas. Retiring Justice Sandra Day O’Connor has said she will remain on the court until her replacement is confirmed.

Miers will remain White House counsel.

Democrats urged Bush to nominate a relative moderate in the mold of O’Connor, who frequently cast the swing vote on abortion and other controversial issues coming before the court this year. “He must listen to all Americans, not just the far right,” said Sen. Edward Kennedy of Massachusetts.

Bush said Miers withdrew because of a bipartisan effort in Congress to gain access to internal documents related to her current role as counsel to the president.

Story continues below ↓
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There were few regrets on Capitol Hill, from either party. Republicans control 55 of the Senate’s 100 seats, but several GOP lawmakers were wavering on Miers amid intense lobbying from conservative interest groups.

“It is clear that senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House — disclosures that would undermine a president’s ability to receive candid counsel,” Bush said. “Harriet Miers’ decision demonstrates her deep respect for this essential aspect of the constitutional separation of powers — and confirms my deep respect and admiration for her.”

Miers notified Bush of her decision at 8:30 p.m. Wednesday, according to a senior White House official who said the president will move quickly to find a new nominee.

‘Perfect storm’
A White House source, who had been working on Miers’ confirmation, told NBC News that the withdrawal was the result of a “perfect storm” of events — including a call to the White House Wednesday from a conservative Senate Judiciary Committee member who “hoped” the nomination would be withdrawn.

In a letter dated Thursday, Miers said she was concerned that the confirmation process “would create a burden for the White House and our staff that is not in the best interest of the country.”

She noted that members of the Senate had indicated their intention to seek documents about her service in the White House in order to judge whether to support her nomination to the Supreme Court. “I have been informed repeatedly that in lieu of records, I would be expected to testify about my service in the White House to demonstrate my experience and judicial philosophy,” she wrote.

“While I believe that my lengthy career provides sufficient evidence for consideration of my nomination, I am convinced the efforts to obtain Executive Branch materials and information will continue.”

 

[Balt]

When Bush nominated someone without judicial experience it was a big issue to the Democrats and the liberal media.

Nice to see it proven once again that the liberals are complete hypocrites and judicial experience only matter if its a conservative nominee.

It wasn't just 'Democrats and the liberal media' that didn't like Miers, and the fact that she didn't have judicial experience wasn't the reason she was a bad choice. Try again.

 

[werepossum]

It was almost completely Republicans that didn't like Myers, thinking that a Supreme Court nominee should be more than a political hack. Democrats didn't have to oppose her, as her President's party ate her alive (and rightfully so.) Thankfully the Democrats have "progressed" beyond such silly notions and recognize that SCOTUS is nothing more than a useful political tool.

 

[GarfieldtheCat]

It wasn't just 'Democrats and the liberal media' that didn't like Miers, and the fact that she didn't have judicial experience wasn't the reason she was a bad choice. Try again.

This. Her only "claim to fame" was she was Bush's lawyer, she really didn't have any good experience to back up her nomination.

SCOTUS judges don't have to be a judge already, but they should be the "best and brightest" lawyers, with at least some constitutional law experience.

She didn't have either of those. She was just someone dedicated to Bush and who helped him, and that isn't a reason to be a SCOTUS judge.

 

[Jhhnn]

It was almost completely Republicans that didn't like Myers, thinking that a Supreme Court nominee should be more than a political hack. Democrats didn't have to oppose her, as her President's party ate her alive (and rightfully so.) Thankfully the Democrats have "progressed" beyond such silly notions and recognize that SCOTUS is nothing more than a useful political tool.

Nice projection.

Repub presidents have attempted to hack the court at least 3 times in modern history, at least one of which was successful. Bork, Thomas, and Miers come to mind.

It's more than a stretch to make that claim wrt any of Clinton's or Obama's picks, even if one disagrees with the philosophy of the particular nominee.

I'd hoped Obama would nominate somebody who wasn't from NYC, or Harvard, or Yale, so as to provide a different kind of balance to the SCOTUS- Somebody like Sidney Thomas of the 9th circuit court of appeals. Apparently not, however.