Why not a nonlawyer on the high court?

by Doug Bandow

WASHINGTON — For the first time in more than 30 years, an American president has nominated for the U.S. Supreme Court someone without prior judicial experience. It’s too bad that President George W. Bush didn’t go further and choose a nonlawyer.

The Harriet Miers nomination warrants criticism, but for presidential cronyism rather than her lack of lower court experience. Fewer than half of the 108 people who have served on the high court were sitting judges before their appointments. Practicing lawyers, law professors, and politician-senators, attorneys general, governors, and more — used to be common.

These different backgrounds diversified the experiences and broadened the judgments of the court’s membership. Although the rule of law should not be held hostage to personal peculiarities, in practice building a court majority requires more than simply writing brilliant opinions.

Moreover, understanding what the U.S. Constitution says requires understanding the times in which its provisions were drafted and the philosophies of those who did the drafting. While a Constitution that effectively secures rights cannot be “alive” — in which case a transient court majority can torture the document to mean anything — it is more than words on paper.

That is, the constitutional provisions and amendments reflect divisive political fights and difficult political compromises. The nation’s fundamental law can be understood only when studied within its original context.

For instance, America’s Founders assumed a sea of liberty when they created a government representing islands of power. Moreover, they enumerated, and thus limited, federal powers based on their experience of dealing with the British crown, against which they had rebelled.

The Constitution’s framers intended to restrict central authority to the few areas that could not be handled by states. The drafters would be horrified at how the present court misapplies what they designed.

Thus, in much constitutional jurisprudence, what is most needed by a Supreme Court justice is not legal training, but historical understanding and philosophical learning. Even seemingly obscure provisions, such as the “Privileges or Immunities” clause of the 14th Amendment, have discoverable meanings.

The problem with the disappointing Kelo case earlier this year, in which the Court upheld a city’s authority to seize private homes to hand off to private developers to increase tax revenues, was not one of poor lawyering. The error was failing to interpret the words “public use” within the context in which they were written, which was to limit the power of government to take private property.

This doesn’t mean that the Constitution cannot be adapted to evolving political philosophies and public opinions. Rather, such changes should be carried out through the amendment process rather than through the discernment of dubious textual penumbrae and emanations.

Of course, the Supreme Court does more than adjudicate constitutional disputes. Statutory interpretation, too, is an important aspect of the Court’s work. Although deciding what the law says requires understanding what the words mean, deciphering the law also requires understanding how the world works. And that understanding may not always best reside in someone on the federal bench. It might also come from someone who is not even a lawyer.

Good would be an economist who recognizes how market incentives impact individual behavior. Or an entrepreneur who suffers from the consequences of conflicting regulatory regimes. Or even a legislator who knows why Otto von Bismarck famously said that no one wanted to see their laws being made.

Thus, for future Supreme Court nominees President Bush and his successors should consider candidates who lack a J.D. Any appointee would have to be bright and capable of understanding legal arcana. But the nine-member court would benefit if at least one member contributed significant nonlegal experience.

He or she should be well-read in history and understand economics. This justice should recognize the problems and dangers that result when sinful human beings use the coercive power of government. And this appointee should understand the philosophical premises undergirding the constitutional system created by the nation’s founders.

As the Supreme Court has taken over greater political authority in America, its members have become increasingly oblivious to the historical and philosophical context in which the Constitution was drafted. Creating a more diverse membership would help re-establish that connection. It’s time to put a nonlawyer on the U.S. Supreme Court.