We have blogged about this issue before, but I wanted to add a few thoughts anyway. In my view, the argument that a President should nominate someone to the Supreme Court who lacks experience in the court of appeals to ensure "diversity of experience" doesn't make a lot of sense. If typical Supreme Court nominees are 50 years old, and have spent 5-10 years on the appellate bench, they will have spent most of their lives doing something beyond filling up the Federal Reporter. The will have been practicing lawyers, public interest advocates, government officials, legislative staffers, academics, and the like.
True, few federal judges have experience in public office, a lack of experience that O'Neill finds troublesome. But then I'm not sure how that's relevant. Take the case of former legislators, who I would think are the most common type of former public officeholders who are often considered for judgeships. What exactly is it that legislators do that judges need to know? What does that experience teach that jurists who have not been elected to public office suffer from not knowing? Given the realities of work in Congress or state legislatures, I'm not sure.
Perhaps the argument is that those who want former legislators to become judges really don't want "diversity of experience," but rather like it when judges act like legislators. That is, maybe a former legislator is more likely to legislate from the bench -- an overused term, but here I think an accurate one -- and some think that's a good thing. Perhaps. But if so, I think that argument should be made directly, not hidden behind an argument for "diversity."
I've always wondered about this argument. I'm not saying that diversity of opinion is bad. I'm just not seeing why it's good. In fact, the last time this happened President Bush nominated Harriet Miers. What we learned was that Miers was a capable lawyer with plenty of life experience and she also was woefully low on Constitutional knowledge.
The Supreme Court is the ultimate place for elites. They need to know more about the Constitution, the law, and case law than anyone. I don't see how an individual would get that outside of a long time on the Judiciary. Furthermore, I don't see anyone could judge a nominee's grasp of all of this without a serious paper trail.
There are certainly other ways to get this without being on District Courts et al, but I don't see the fascination with it. I certainly think that being a law professor could also get that kind of experience and paper trail. Of course, most Supreme Court Justices did something prior to that. No one becomes a judge right out of law school. Still, the idea that we should nominate someone like Janet Napolitano simply because we would have a diversity of opinion seems to be fool hearty. We've seen just how much politicians lack a grasp of the Constitution with the health care debate. Do we really think that a career politician will know two hundred plus years of case law in a manner necessary of a Supreme Court Justice? So, why are some so fascinated with this diversity of experience?