Following Souter: Non-Lawyers Need Not Apply


It is nice, bordering on quaint, to think that President Barack Obama would be able to successfully select a "regular person" (i.e. a non-lawyer) to replace Justice David H. Souter on the United States Supreme Court. It's certainly laudable that he would want to change the experiential makeup of the Court—all nine current Justices, including the soon-to-be-retired Justice Souter, came from federal appeals courts, which are almost as isolated from the rest of the world as is the Supreme Court itself.

(AP Photo/Mark J. Terrill, file)
But neither Oprah nor Dr. Phil nor Donald Trump nor that Scottish lady who sings nor Tiger Woods nor Bruce Springsteen nor any other non-lawyer will make it to the Court.

Here's why: the law in 2009 is far too complex for a lay person to jump into at the highest possible level. There are too many rules, too many standards, too much precedent, and too many exceptions. It would be like asking your high school French teacher to suddenly in a month be able to consistently comprehend, translate, and implement instructions in ancient Latin.

The regulatory age in which we live, where Justices (or any and all lower court judges) must routinely sift through mind-numbingly obtuse legal language, simply does not permit the real possibility of appointing someone who doesn't know a great deal about the Constitution and its relationship to virtually every other vessel of law. Even in our Google word, where anyone who can spell can look up the definition of the word certiorari, it would take years for such a candidate to overcome such an intellectual deficit; time that the country and the Court cannot afford to spend.

Indeed, what Walter Lippmann famously said a century ago about the larger world is certainly now true about American constitutional, statutory, regulatory and administrative law: it is far beyond the comprehension of even the brightest commoner to understand. Albert Einstein would have made a terrible modern-day Justice. So would Bill Gates or Paul Krugman or J.D. Salinger or Maya Angelou. If you don't believe me, read the last ten Supreme Court decisions (or CERCLA) and then tell me that you think the five brightest people you know would understand precisely what they purport to say and why.

This is not to say, however, that President Obama necessarily will be forced to select a sitting judge, or even practicing lawyer, to replace Justice Souter. There are plenty of excellent Court candidates who are not currently serving on federal- or state-court benches or churning up billable hours in private practice. They fall into that fairly common group I like to call "recovering lawyers;" people who, like me, have a legal education and background but who no longer have clients or have to routinely go to court.

These people have legal training and experience but are not currently a part of the "system." Like scholar Jeffrey Rosen, one of the most insightful legal analysts ever to focus upon the Supreme Court. Or author John Grisham, at left, whose novels suggest a level of understanding about criminal law that belies their pop status. Or Linda Greenhouse, the New York Times reporter, and Yale Law School graduate, who covered the Supreme Court for decades before her recent retirement. These people surely represent what the President meant when he talked about a need for adding diversity of background and experience on the Supreme Court. They all would be welcome additions to the group.
Hillary Clinton, who one day probably will be a Justice, also fits this bill. As do current governors Jennifer Granholm, at left, of Michigan and Christine Gregoire of Washington. Each of these deeply accomplished women got their law degrees, worked in the law for bit, saw the light, and changed careers. Clinton won't get the nod this time but she'll be in the running down the road. Granholm just might get the call this time—like the president, she went to Harvard Law School and then into politics.

Remember retired Justice Sandra Day O'Connor? Of course you do. She dabbled in politics briefly in Arizona—like me she was a "recovering attorney"-- before returning to the law. How did that work out? She was a dogged consensus-builder on the Court and one of its most popular modern-day justices. President Obama would be well served if he could find from among the many qualified candidates a nominee who brought such an extra dimension into the cloistered world of the Court.

The same goes for the litany of law professors out there who have been identified as potential candidates. These folks—Kathleen Sullivan, Pamela Karlan, Cass Sunstein (though he just recently left the classroom to join the Administration)—come from their own walled-off world of academe. But being a law professor in 2009 isn't what it was in 1959. Law professors don't just write tedious law review pieces and sound like John Houseman. They write blogs, they comment online; in short, they interact with the world in a way they never have before. This makes them better candidates for the Court than ever before.

So I'm all for the president picking someone who doesn't wear a robe to work every day. And there are plenty of people who can do the job and do it well. Sorry, Oprah, I guess this means I'll never make it onto the show.

Andrew Cohen is CBS News' Chief Legal Analyst and Legal Editor. CourtWatch is his new blog with analysis and commentary on breaking legal news and events. For columns on legal issues before the beginning of this blog, click here.