ML responds: Yes, that is correct — as long as SOC does not retire, there is no vacancy to fill.

As Akiba Covitz and Mark Tushnet argue, what you really want are people with common sense. I would add an ability to express themselves clearly, and an open mind. Each Justice has some legal aids, and they could fill in the non-lawyer Justices on accepted legal meaning of certain words and phrases, as well as perform the research on precedents. It’s my understanding that they generally already do the latter for the current Justices.

A President might nominate nationally recognized authors, playwrites, and poets, whose work demonstrates a keen understanding of the use of our English language, as well as human behavior and of what makes our country run. Or a nominee could be a prominent scientist, astronaut, General, Admiral, engineer, or mathematician, all of whom have made careers of solving problems subject to certain constraints.

The Constitution lists no qualification for Supreme Court Justices. (I may be wrong, but I don’t think it either has a requirement that they take one oath, much less the two that is the current practice.)

They have a point on the second “thing,” but this is a truly astonishing statement on the first. Among the people I have dealt with in my career, those who have spent their entire adult lives in the political realm, whether as elected officials or staffers, have far and away the least knowledge of how the law affects people in the real world.

A number of years ago, George McGovern wrote an op-ed in the Wall Street Journal. He had gone into business after his political career, operating an inn a la Bob Newhart. Only then did he realize the crushing burdens that the regulatory state places upon the people who actually create our gross national product.

For knowledge of how the law affects real people, I would suggest people with experience practicing law at the retail level (not blue-chip law firms) or with experience in small to medium-sized businesses.

SOC nonwithstanding, aren’t approaches like “pragmatism” and “common sense” just gateways to judicial activism? “Common sense” is so often in the eyes of the beholder, but law is supposed to be above that.

ML responds: Thanks much — I did not know that

With the addition of Chief Justice Roberts, there are now eight former U.S. Court of Appeals Judges on the United States Supreme Court. Outgoing Justice O’Connor is the only one with state court — or legislative — experience. She also served as a prosecutor at one point in her career.

Compare this Court with past ones that included former Governors and Senators, as well as distinguished attorneys with extensive private-sector experience.

Courts of Appeals are important, but they do not deal with the same wide variety of cases that come before state courts. If the Supreme Court is now open only to candidates with judicial experience, it would be good to see a nominee with lengthy state court experience.

The first observation draws from the conclusion of the Covitz and Tushnet article: “The president will pick conservative nominees; he was elected to do that. But let him pick a justice who has delivered real services to real people, who has asked real people for their support, who has breathed the air outside the corridors of appellate courts. And if our current political system is unable to give us such justices? Then that’s just another indictment of the system we’ve created.”

The experience which Covitz and Tushnet endorse may or may not yield the common sense that they desire in a justice. That experience does, however, provide just the sort of extensive public record which the partisans in the Senate would use to oppose a nominee. What is more, such a record would be the nominee’s own, not that of a client or administration which the nominee could hold at arm’s length. Given past experience, our current political system stands not merely indicted as Covitz and Tushnet suggest, but convicted.

The second, related observation is that the appointment of a politician does not necessarily provide a justice with “common sense.” Unfortunately, the current political system also places too low a premium on statesmanship — as opposed to ideological partisanship. Too few politicians, even those with the security of six-year senate seats and virtually certain reelection, are willing to reach across ideological and party lines for “common sense” solutions.

The alternative perspective I offer is that of a lawyer with an active, primarily trial, practice. While the Supreme Court might well benefit from the perspective of one who has spent time in the political trenches, what it needs more is a justice with extensive time in the trial court trenches.

The Supreme Court obviously faces difficult cases which often do not yield easy, straightforward answers. For this reason, some of the confusion and conflict in applying the Court’s cases is inevitable. However, a greater sensitivity to the impact of the Court’s decisions on the lower courts who must apply them and, more importantly, on the parties that must attempt to conform their conduct based upon those cases, would benefit everyone with a stake in the system.