Thursday, November 04, 2004


From the transcript of an Arlen Specter press conference:
MACINTOSH: What are the characteristics that you are looking for in any candidate for the high court who might come your way in the next year or two?

SPECTER: Well I would like to see a select someone in the mold of Holmes, Brandeis, Cardozo, or Marshall. With all due respect to the U.S. Supreme Court, we don't have one. And I haven't minced any words about that during the confirmation process.

* * *

ODOM: Senator, the judges you mentioned are obviously renown. Are you saying that there are no greatness on there, is that what you're driving at?

SPECTER: Yes. Can you take yes for an answer Vernon? I'm saying that we don't have anybody of the stature of Oliver Wendell Holmes, or Willy Brandeis, or Cardozo, or Marshall. That's what I'm saying. I'm saying that we have a court which they're graduates from the Court of Appeals from the District of Columbia basically, some other Circuit Courts of Appeals. I think that we could use, and I am repeating myself again, a Holmes or a Brandeis.
Two thoughts:

1) Willy Brandeis? Please tell me that this is a transcription error.

2) What on earth does he mean by pointing out that some Justices have come from the D.C. Circuit or other circuits? Does that prevent them from being great? Should they all come from the Massachusetts Supreme Judicial Court, as did Holmes? Or is he intending to imply that previous judicial experience is harmful? Why?


Anonymous Anonymous said...

Stuart Buck wrote:

>1) Willy Brandeis? Please tell me that this is a transcription error.

Probably a slip of the tongue between unrelated but roughly similar last names --

thinking Brandeis, but naming Brandt.

12:00 AM  
Anonymous Anonymous said...

Perhaps he meant wily Brandeis. A liberal fan of federalism would certainly warrant that modifier.

As to your last question, I cannot speak for Sen. Specter, but I have my own thoughts on the benefits of more diverse resumes for Supreme Court justices. I wonder whether the Court would benefit from having more justices with substantial private practice experience. Consider the trajectory of years of private practice on the present Court: Rehnquist (16), Stevens (22), O'Connor (8), Scalia (7), Kennedy (14), Souter (2), Thomas (2), Ginsberg (0), and Breyer (0). Is there a cost to this trend? I believe so. Lawyers who have spent most of their careers as academics and appellate judges (and perhaps even prosecutors) are likely to have deficiencies in knowledge and experience. They are removed from alternative dispute resolution, business planning to avoid litigation, the financial and personal costs of the justice system for litigants, the working of procedure and evidence in trial courts, the ethical and intellectual challenges of litigators, etc. They can certainly try to inform themselves of these things through research, but that cannot replace hands-on experience. Also, the outlook of long-time judges may be skewed by the fact that they spend all their time analyzing what are essentially breakdowns in the legal system. When one only sees the failures, it might be difficult to develop a sense of what legal rules actually work.

I don't regard private practice experience as a panacea. However, one of my judicial heroes, the second Justice Harlan, came to the Court with the thinnest of 2nd Cir. icing on a career of layered private practice and prosecutorial experience. I would suggest that President Bush consider nominees with similar backgrounds to provide some experiential diversity to the Court. Perhaps Larry Thompson. Perhaps a well-respected U.S. District Court or state appellate court judge. We certainly don't need any more academics on the bench.

12:15 PM  
Anonymous Anonymous said...

I suspect he is refering the past practice of naming Senators to the bench. Mmmmmm, I wonder if Arlen has anyone in mind?

As a tactical play, I may be in favor of naming Specter in place of Stevens. Keep balance in the Court ya know. It would also get him off judiciary in order to put a real conservative on the committee. I think Bush should at least dangle the possibility in front of Specter to keep him in line.

11:21 AM  

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