Harriet Miers and the Myth that Great Supreme Court Justices Must Be Former Judges from Elite Law Schools

By SCOTT GERBER

Wednesday, Oct. 05, 2005

I think it's terrific that President George W. Bush has nominated Harriet Miers to replace Sandra Day O'Connor on the Supreme Court of the United States. As the first woman to serve on the nation's highest court, Justice O'Connor has been a tremendous role model for women, especially young professional women. If President Bush hadn't named a woman to succeed Justice O'Connor, that would have left Justice Ruth Bader Ginsburg as the only woman on the nine-person bench.

Women deserve more than token representation on the Supreme Court and President Bush should be commended for recognizing this fact. Kudos, too, ought to go to Justice O'Connor herself, and First Lady Laura Bush, who both encouraged the nomination of a woman.

Importantly, though, gender isn't the only diversity consideration that makes Ms. Miers such an excellent choice for the high Court. Her nomination also is welcome relief from the recent practice of appointing only candidates with prior judicial experience who graduated from elite law schools.

The Court's history plainly shows that to be a great justice one need not possess either of these attributes. Yet many commenting on Miers's nomination are acting as if these are set in stone--prerequisites for service on the Court. They need a history lesson.

Many of the Best Supreme Court Justices Didn't Have Prior Judicial Experience

Granted, it's true that every member of the current Roberts Court previously had served as a judge before being appointed to the U.S. Supreme Court:

Chief Justice John G. Roberts Jr. sat on the U.S. Court of Appeals for the District of Columbia Circuit, as did Justices Antonin Scalia, Clarence Thomas, and Ruth Bader Ginsburg; Justice John Paul Stevens served on the U.S. Court of Appeals for the Seventh Circuit; Justice Anthony Kennedy sat on the U.S. Court of Appeals for the Ninth Circuit; and Justice David H. Souter served on the Superior Court of New Hampshire, the Supreme Court of New Hampshire, and the U.S. Court of Appeals for the First Circuit--where Justice Stephen G. Breyer also sat. (Justice O'Connor was a state court judge for six years prior to being appointed to the Supreme Court.)

But let's be frank: None of these justices are regarded as "great" by the vast majority of students of the Supreme Court. (Of course, it's too early to tell with Roberts--this is his first week on the job--and I personally regard both Scalia and Thomas very highly, albeit for different reasons.)

This shouldn't be surprising. After all, the Supreme Court isn't simply an appellate court of last resort, it's a political institution. Justice Felix Frankfurter put it well in a 1957 law review article: "One is entitled to say without qualification that the correlation between prior judicial experience and fitness for the Supreme Court is zero."

Frankfurter, who was himself appointed to the Court without prior judicial experience, continued: "The significance of the greatest among the justices who had such experience, Holmes and Cardozo, derived not from that judicial experience but from the fact that they were Holmes and Cardozo. They were thinkers, and more particularly, legal philosophers."

Among the "great" Supreme Court justices who didn't have prior judicial experience were venerated Marbury v. Madison author John Marshall, the prolific Joseph Story, and other bright lights. They included Louis D. Brandeis, originator of the famously well-researched "Brandeis brief," Harlan Fiske Stone, William O. Douglas, Felix Frankfurter, and Earl Warren.

Brandeis and Frankfurter are credited with crafting landmark First Amendment decisions; Warren is responsible for setting the tone for the entire era that bears his name. So much for the claim that non-judges can't succeed on the Court . . .

In fact, of the justices appearing on all, or most, of the lists of "great" justices only Oliver W. Holmes Jr. and Benjamin N. Cardozo had significant prior judicial experience. (Hugo L. Black had served for a short time as a judge on the police court of Birmingham, Alabama, but I suspect that Miers's critics wouldn't think much of such service--even though Black is regarded as one of the truly great justices.)

Many Outstanding Supreme Court Justices Didn't Graduate from Elite Law Schools

What about the other criticism of Miers--that she "only" went to Southern Methodist University School of Law? Again, history undermines the claim that this should count against her.

Chief Justice Roberts and Justices Scalia, Kennedy, Souter, and Breyer graduated from Harvard Law School. Justice Stevens graduated from Northwestern University School of Law, Justice Thomas from Yale Law School, and Justice Ginsburg from Columbia University School of Law. All of these are elite law schools. (Justice O'Connor graduated from Stanford Law School, another elite law school.) But, again, none of these justices are considered "great."

As was the case with prior judicial experience, graduating from an elite law school seemingly had become a necessary condition in recent years for appointment to the Supreme Court.

This wasn't always the case. Indeed, just as many of the best Supreme Court justices didn't have prior judicial experience, so too did some fail to graduate from the Harvards and Yales of the world.

For example, Hugo Black graduated from the University of Alabama School of Law, while modern "near great" John Marshall Harlan II graduated from New York Law School--not to be confused with elite New York University School of Law--and Robert H. Jackson didn't graduate from law school at all.

It's also worth noting that Thurgood Marshall graduated from Howard, not Harvard, and Lewis F. Powell Jr.--the swing vote prior to Justice O'Connor's appointment to the Court--graduated from Washington and Lee.

Requiring justices to be graduates of Ivy League schools has other problems, too. It privileges alumni legacies. (At Yale, for instance, alumni children enjoy a considerable boost in the admissions process.) It also favors those who disregard regional loyalties, family ties, and possible local political aspirations. In addition, few elite schools offer anything like reasonable tuition--and those that do, like the University of California's Boalt Hall and the University of Virginia (where I went), often have lengthy residency requirements for in-state tuition.

How does favoring wealthy careerists--often with alumni parents--lead to "greatness"? Those who advocate "Ivy or bust" must answer that question.

Miers's Qualifications Are More Than Sufficient for the Supreme Court

Senator Roman L. Hruska, President Richard M. Nixon's floor manager for the failed nomination of Harold G. Carswell to the Supreme Court, famously remarked: "Even if he is mediocre there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Cardozos, and Frankfurters, and stuff like that there."

I'm not articulating a twenty-first century version of Senator Hruska's ridiculous argument. Rather, I'm applauding President Bush for recognizing that a person can be qualified for a seat on the highest court in the land without prior judicial experience and without a degree from an elite law school.

Of course, many in the legal elite disagree. For example, law professor Jonathan R. Turley opined on the Today show immediately after Miers was nominated by President Bush that Miers is an "amazingly bad pick . . . she doesn't have the resume for the job." Professor Turley went on to add that Abe Fortas, one of Lyndon B. Johnson's lawyers prior to being nominated to the Court by President Johnson, didn't have prior judicial experience, "but he had taught at Yale Law School."

It's this sort of elitist mind-set that President Bush should be commended for attempting to break. Different perspectives are essential for any healthy institution, as Thurgood Marshall proved so well when he served on the Supreme Court. (Chief Justice William H. Rehnquist thought so, too.) The Roberts Court can't help but benefit from Harriet Miers's unique experiences: her legal education at Southern Methodist University, her managing partnership in a major law firm, her presidency of both local and state bar associations, her service in local and state government, and her years in the Bush White House, including as White House Counsel.

As we say at Ohio Northern University, ex diversitate vires. Out of diversity, strength.


Scott D. Gerber is an associate professor at Ohio Northern University College of Law and a senior research scholar in law and politics at the Social Philosophy and Policy Center. His books include First Principles: The Jurisprudence of Clarence Thomas (New York University Press). His legal thriller, The Law Clerk, is forthcoming from Seven Locks Press. His email address is s-gerber@onu.edu.

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