Back in 2009 when Justice David Souter retired, I wrote that I would love to see SCOTUS judges who had actually practiced law with living, breathing, broken humans sitting, at some point, in their offices.
This week, with Justice Kennedy’s announced retirement, Trump said he wanted yet another Harvard or Yale judge. As if we didn’t already have a bench stuffed with them.
Diversity takes many forms. Sometimes it is has to to do with gender, race, religion, etc. But there is another kind of diversity, and that goes with what we actually have done with our lives.
Hopefully, we won’t see yet another person who has spent a lifetime on the bench or in academia (or combined), and one that has lived a life (from the law-related perspective) with diversified experience.
My 2009 post regarding the filling of the Souter’s seat (by Judge Sotomayor) is re-printed here in full:
The SCOTUS Nominee and The Tissue Box Test
I want to talk about tissues and the law and Supreme Court nominees. As the legal blogosphere and political Washington buzz about the judicial philosophy President Obama will be looking for in a judge to replace Justice David Souter — and what underrepresented social niche the nominee will come from, be it female, black, Hispanic, gay, etc. — what I want to know is if the nominee has ever had a box of tissues on his or her desk. For clients.
I want a nominee that knows what it’s like to have someone cry in their office. I want a nominee that has been there when someone tells them that their mother/father/brother/daughter was arrested/injured/killed and that they are desperate for help.
I want a nominee to know what it’s like to see real people — not political philosophies or corporate giants trying to add a few cents per share to their earnings — in their office in distress, and to represent them. I want a nominee that has experienced being the last, best hope for a downtrodden individual and the problem brought in the door. I want someone who knows what it’s like to be the underdog against corporate or government interests.
I want a nominee to know what it’s like to make the rent. To pay an employee. From their own pocket and not someone else’s. To answer the phones. To argue the case. To battle against deception. To actually practice law in the real world instead of in the ivory tower under the protective wings of others.
Our court is stuffed with Harvard and Yale law school grads, most of whom I think never actually tried a case for a private client, financed a case, or fought for an individual before ascending to the lofty heights of the appellate bench.
Last week Norm Pattis wrote on why we need a trial lawyer on the Supreme Court.He said:
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.
We don’t have anything resembling a cross-section of society on the court. We don’t have people who look at broken bodies up front and personal in their offices. That’s why we have the tissue box. It isn’t to wipe our own noses.
At Simple Justice, Scott Greenfield picked up the Pattis theme with this about the birth of the trench lawyer movement:
In the trenches, we experience life, along with the huddled masses who care far less about whether a judge is a constructionist or originalist or texturalist. We know the consequences of decisions, together with the consequences of delayed decisions. Our view is ground level, and our understanding of how badly the law can hurt comes from holding the hands of the maimed. We know that people lie, cheat and steal, but we know that isn’t limited to the defendants. We have philosophies, but we live realities.
Perhaps life’s experience representing individuals will mean something different to the practitioner-judge than the philosopher-judge when the government strips away rights. Or corporations do a cost-benefit analysis and determine a few deaths aren’t so bad for their product because the profits will still exceed the legal payouts.
If Obama wants a judge who “understands that justice isn’t about some abstract legal theory or footnote in a casebook” then he better find a lawyer who once had that tissue box on the desk for the clients.