Justices' Time in Legal 'Trenches' Often Limited

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Atlantic Monthly writer Stuart Taylor tells Scott Simon that since many Supreme Court nominees come from federal appeals courts, they often lack experience with hands-on application of the law.


When Congress reconvenes after the Labor Day break, senators will give their full attention to the life, career and credentials of US Supreme Court nominee John Roberts. Many are eager to know if his past writings offer some kind of sign of how he would vote in the future on the Supreme Court, should he be confirmed. Stuart Taylor Jr., a columnist for the National Journal and Newsweek, has written that one of the most valuable credentials a Supreme Court nominee could have is one that very few do: practical experience in criminal law. Mr. Taylor asks: How many members of the current Supreme Court--how many people whose names are bandied about as eventual nominees--have ever worked as prosecutors, criminal defense lawyers or judges in a criminal trial? Stuart Taylor joins us in our studios.

Thanks very much for being with us.

Mr. STUART TAYLOR Jr. (National Review/Newsweek): Nice to be here, Scott.

SIMON: Let me get you to answer your own question.

Mr. TAYLOR: Well, judges in a criminal trial, I think--in those categories, the article wrote one. I made an error, I hate to admit. David Souter was a New Hampshire prosecutor once upon a time and later served as a trial judge. Other than that, none of them has any trial experience, I believe. The error I made was that Chief Justice Rehnquist, who had never had trial experience before or since, on sort of a lark in 1984 went down and presided over a civil rights trial in Virginia, I think. And I had overlooked this, and somebody reminded me of it after I failed to list that. But the general point, I think, remains true. Very little experience kind of down in the trenches of litigation, criminal and civil, because all of them are coming from federal appeals courts.

SIMON: So this includes Judge Roberts, who doesn't have that?

Mr. TAYLOR: It does. He flunks my test of experiential diversity in the sense that, like everyone else on the court, except Justice--Chief Justice Rehnquist, he comes from a federal appeals court. He does have--I mean, that's--not that that's not a valuable experience.

SIMON: Yeah.

Mr. TAYLOR: And he also had valuable experience in the White House and in the Justice Department and as an appellate lawyer, but not trial experience particularly. And the problem is not so much that any one of them or two or three of them comes from that sort of a background is that when all of them do, or almost all of them, you kind of wonder, well, when they decide, for example, a big case of civil litigation--let's say, asbestos--do they have any idea what it's really like for the lawyers litigating those cases or for the parties in some huge class action where you're just sort of shoveling huge mounds of documents around in a way that a lot of people think doesn't work very well? None of them have done that.

SIMON: In your judgment, what do they--what are some of the other things they miss out on by not having presided over a criminal trial or having been a prosecutor or criminal defense attorney?

Mr. TAYLOR: I think they miss out--I mean, obviously, they're all smart people and they look at the records in these trials and they read things. So it's not as though they're oblivious to all of the things. But I think sometimes you have to live an experience to really have a feel for it. For example, the rules that apply in criminal trials in terms of what evidence comes in, what evidence comes out, so forth, are mind-bogglingly complex. Trial judges don't understand them. Prosecutors don't understand them, and defense lawyers don't understand them. Certainly, cops don't understand them. What they lose sight of, I think, is how do you run a system that's working on rules of that complexity? Take Justice John Paul Stevens. Unlike anyone else on the court, he did have big-case litigating experience, which is one of the kinds of experience you wish some of these people had, but that ended in 1970 when he became a federal appeals court judge. The world, and the litigating world in particular, has changed dramatically in the 35 years since then. And so, you know, the experience that might have been very valid to the decisions he was making in the early years as a justice has become progressively less valid ever since then.

SIMON: You seem to think that some of these practical experiences in the trenches, as you call it, of the legal system are more pertinent in weighing a nominee's fitness for the Supreme Court than a lot of the ideological questions that get asked now.

Mr. TAYLOR: Yeah. The ideological questions are, of course, important, I think, in part because the Supreme Court--I agree with what John Roberts has said and what a lot of conservatives have said and more and more liberals, by the way, now. The Supreme Court has become too grandiose an actor in our public policy arena. They have taken upon themselves to set national policy on too many things, and as a result, the ideological questions loom very large. But they're supposed to be running a legal system and the vast majority of the cases in the legal system they're supposed to be running don't really deal with these big ideological questions. And they're not being as much help as I think they ought to be in terms of running that show in a sensible way, the way a corporate executive would hopefully make the company run in a sensible way.

SIMON: Somebody at the same time who has been a prosecutor or has been a judge may have also presided over a trial in which the wrong man or woman was convicted or someone who was guilty was let off or a defense attorney who has defended a murderer--are they harder to get through the confirmation process?

Mr. TAYLOR: Not so much because of the experiences you just described. There's kind of a lowest common denominator that keeps driving the presidents to pick federal appeals court judges. The federal appeals court judges are on the federal appeals courts because presidents already sort of liked their ideology. Anyone else would present a range of additional problems. If it's, say, an outstanding lawyer in private practice, well, who knows what he really thinks about big issues? Not a safe nominee--another Souter, the conservatives would say. If he's a politician who's had to cast a million votes--you remember what--how hard it was for John Kerry running as a senator with those votes that people could throw back at him; all the harder to get confirmed as a Supreme Court justice. It seems that by lowest common denominator the federal appeals court judges are the ones who find--have the easiest way through the gauntlet to get on the Supreme Court.

SIMON: Stuart Taylor. His article on the Supreme Court appears in the current Atlantic Monthly. Thanks very much for being with us.

Mr. TAYLOR: Thank you.

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