Let's see just how bold President Barack Obama will be in his first appointment to the United States Supreme Court. He wants a lawyer with real world experience. Just how real is the president prepared to get?
Adam Liptak's piece in this morning's New York Times is revealing for the bias it brings to the discussion. The current court is composed entirely of former federal appeals court judges. All but one got their professional tickets punched at two of the nation's premiere status factories: Harvard and Yale. Three of the current justices have never even worked in private practices. As lawyers go, the current justices are glittering gems. It is an elite group, long since detached from the world the vast majority of folks inhabit.
But then Liptak betrays his bias. When he looks for someone with real world experience on the Court he turns to David Souter. Why Souter was a trial judge and an attorney general of the State of New Hampshire. "No other justice has either sort of experience," he writes.
Newsflash to Liptak: Being the top law enforcement officer of a state or a trial judge isn't exaclty the real world. The mass of men, to paraphrase an author Souter loves, lead lives of quiet desparation far from the seclusion of a trial court's chambers or the apex of a state-court law enforcement agency. Only from the burnished brass and dark oak corridors of power does a trial judge or an attorney general look like the inhabitant of the real world.
When President Obama opposed John Roberts' appointment to the Supreme Court, he said "adherence to precedent and rules of construction will only get you throught the 25th mile of the marathan." What concerns the president is the view during the last mile, a view that takes account of "the broader perspective on how the world works."
Mr. President, those who walk the corridors of power don't run marathons. A federal appellate court judge sprints. A state law maker runs hurdles. A trial judge is a middle distance man. And former governors and chief executives of government agencies are, at best, specialists in the 10,000 meter run. The men and women who run the law's, and life's marathons, are trial lawyers
A trial lawyer knows about raw human need and the law's rough edges. It is a trial lawyer's job to find the intersection of terror, fear and tears with the high doctrine and principle of the law. Not one member of the current court has ever sat with a client and his family during jury deliberations to discuss what will become of a family should the client be sent to prison. Not one of these legal scholars have ever told a person that the law's reach will not embrace the harm they have endured. I cannot fathom Scalia counseling a client about sovereign immuity.
And be careful, Mr. President. When I refer to a trial lawyer, I am not asking you to troll the big leagues. Don't call David Boies or the other so-called stars of the bar who represent big clients with deep pockets. These lawyers are at best half-marathoners. They don't know what it is like to stand in the well of a court pleading for justice long after their client has run out of money to pay them.
I am not a scholar of the Supreme Court, so I do not know the answer to this question: When is the last time a lawyer who made his living from fees earned representing ordinary working people sat on the Supreme Court?
The bar's elite will shudder at the thought of an uncouth lawyer sitting atop justice's pyramid. But the shuddering really reflects the the conceit of those who view the law as little more than a pyramid scheme. The law is not science. There is no Platonic elite governing eternal truths exposed briefly to view in qoutidian conflicts. The law is simple: It is civilized society's way of brokering peace in the face of conflicts rubbed raw by human need. A man dies, and another is accused of the killing; a mother cannot afford the rent for her home, and her landlord presses her; a child's parents do not provide the care a state official thinks necessary and now hearts are torn assunder. This is the world most Americans inhabit. We do not command corporations, run large agencies, stride the corridors of power as lawmakers or judges. When we awaken in the morning, we hope, and the law is what we turn to when the hopes of conflicting parties threaten to turn into despair.
Mr. President, you broke a mold when you were elected, or so it seemed. Hope flowed from the bosoms of millions who thought you would provoke change. Don't fall into the mold of offering the same old type of judge. Turn your back on Ivy walls. Tell the law's interest groups and their constipated doctrines of what the law is and should be to retire to their studies to inhale the choking smell of the wick. Leave the politicians and judges alone to enjoy their power. Pick a lawyer who is acquainted with sorrows and knows the grief of the real people in need who elected you.
The Times reports that Mr. Obama wants a judge who "understands that justice isn't about some abstract legal theory or footnote in a casebook.... It is also about how our laws affect the daily realities of people's lives." Hence the first question of any potential nominee: "When is the last time you appeared in a courtroom to represent a person making less than the median income of the United States?" No one on the short list of names being tossed about can answer that question with anything other than silence.