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U.S. Supreme Court

Should Souter Replacement Be a Judge?

Posted May 4, 2009 5:36 PM CST
By Martha Neil

As President Barack Obama mulls possible nominees for the upcoming vacancy on the U.S. Supreme Court, there's no shortage of advice about the factors he should taken into consideration.

Many have speculated that the president will select a woman to replace Justice David Souter after he retires. However, Obama should also consider another diversity issue on the bench, suggests Sherrilyn Ifill, a law professor at the University of Maryland, in a CNN column today.

"Federal appellate judges, former federal prosecutors and high-powered federal appellate practitioners stand a very good chance of getting nominated. State court judges, full-time law professors, former criminal defense attorneys, even civil practice trial lawyers—not so much," she writes. Yet many of those in the latter group have a great deal of practical litigation knowledge that would benefit the nation's top court.

Thurgood Marshall, who retired from the Supreme Court nearly 20 years ago, was probably the last justice who had personal experience defending a client in a criminal trial, says Ifill. "It's a shame because this means that the deliberations of the court lack the perspective of lawyers who understand the challenges that face lawyers presenting evidence in some of the toughest and most complex criminal and civil trials."

And Ifill's not the only one making such suggestions, reports the New York Daily News:

"I would like to see more people from outside the judicial monastery—somebody who has had some real-life experience," said Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), in an appearance on ABC's This Week.

Additional and related coverage:

ABAJournal.com: "Who Will Replace Justice Souter?"

Above the Law: "ATL Poll: Who Should Replace SCOTUS Justice David Souter?"

CBS News: "Who Will Replace Souter? 10 Known Knowns"

National Law Journal: "Kagan: Just Call Her 'The General'"

Comments

1.

B. McLeod
May 4, 2009 7:00 PM CST

Technically, a “justice.”

2.

Al Veoli
May 5, 2009 5:24 AM CST

Of course, he/she should be a judge.  What do they want, a TV actor?  How about Carrie PreJean? Maybe they will recruit Matlock, or the tbabe from Law & Order?  I have a long list of unqualified people, but they need someone who knows what’s going on.  This is dumb if they don’t take a sitting judge, preferably a Female judge.  They can’t have only 1 woman on a 9 man court.  More women, please.

3.

TN
May 5, 2009 6:33 AM CST

Well, I don’t think someone should be excluded as a possible candidate if they were a judge.

Who should be excluded is anyone that went to Harvard, Yale, or Stanford or that is associated with those schools.  Top law school grads do not represent the majority of the US very well.  Plus, they kind of have a myopic view on real life.

Also, I’d exclude those people whose jobs where mostly law professors and/or administrators that do not have much real-life work experience (whether in the law, as in at a law firm or such, or a non-legal job).  Law professors also live and work in a closed environment, so to speak.

I’d exclude those that have spent the majority of their time working for the federal government in DC too.

I’d look for someone who has had many varied experiences, which could include someone who is/was a judge or even taught law school briefly, and perhaps someone who has spent their time interacting with a broad cross-section of Americans.  (obviously, this eliminates Elaine Kegan and Kathleen Sullivan)

And the pick almost has to at least be a woman…it is nigh time that women and minorities had greater representation on the highest court (and the appeals courts for that matter)

4.

logos
May 5, 2009 7:07 AM CST

Of course his replacement shouldn’t be a judge.  After all, the Supreme Court stopped functioning as a judicial body long ago, and it now holds forth on political and philosophical issues that are none of its business, so why keep up the pretense?

5.

associate
May 5, 2009 10:26 AM CST

logos, that’s not very PC of you to speak the truth you know. 


How about someone who interprets the letter of the law and leaves writing it to the legislative branch.

6.

fed up
May 5, 2009 12:05 PM CST

To TN, it is a fallacy to believe that women and minorities will necessarily represent those views - has Justice Thomas done much to represent the views of African-Americans?  Diversity only creates the illusion of fairness, and the illusion of justice, which may be fitting, since the justice system only provides an illusion of justice.

7.

WASP/MCP (JAG, CALWP)
May 5, 2009 1:47 PM CST

CRITERIA
Young, healthy, female, Jew with ancestors who died in their 90’s;
Multiracial (Black + Native American + Asian genes);
Earned her credentials by being put down, kicked (figuratively) around ala Justice T. Marshall;
Too “dumb” to know that she “could not”;
Too “stubborn” to give up;
Does not gasp or choke, when she reads dissenting opinions of Justices W. Rutledge, F. Murphy, H. Black, W. Douglas, et al.
Understands what she reads, when she reads dissenting opinions of Justices W. Rutledge, F. Murphy, H. Black, W. Douglas, et al.

I agree with #6-fed up’s “necessarily represent those views” and answer no to the Justice Thomas question.
2009-05-05-3 1547 -0400

8.

NYJD
May 5, 2009 3:02 PM CST

I think Obama should nominate someone who likes cats.

9.

RA
May 5, 2009 7:25 PM CST

I think we are in deep trouble if we let Obama select the next SC justice. Unfortunately he is the one in charge of selecting the candidate. I’m interesting to see how socialism will play in the SC!!!

10.

J.D.
May 6, 2009 11:56 AM CST

Obama was elected to be the CEO of the free world, but he had absolutely no executive experience running anything.

So I guess appointing an inexperienced person to the high court would make sense.

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