Wednesday, November 22, 2006

Must Judges Be Lawyers?

Perhaps partly in response to a series of front-page articles in the New York Times earlier this year, New York State's Chief Judge Judith Kaye announced proposed changes to the state's "Justice Courts" that serve many rural and suburban communities. The series reported on underpaid and unqualified judges dispensing at best uneven approximations of justice. Principal among the changes would be increased training and monitoring of the judges, the latter to be facilitated by a new requirement of court transcripts. However, because the Chief Judge lacks the authority to require that these judges be fully trained lawyers, that change would have to come from the legislature, which has historically been reluctant to tinker with the Justice Courts.

The New York saga raises the more general question of whether judges should necessarily be lawyers. At the federal level, there is no such rule. By statute, the Solicitor General must be "learned in the law," but no similar requirement applies to federal judges or Supreme Court Justices. Of course, the widely followed historical custom has been for Presidents to nominate lawyers. Nonetheless, this practice has sometimes been criticized on the ground that, at least with respect to divisive constitutioanl issues like abortion, gay rights, church-state relations, and affirmative action, more legitimate decisions might be reached were the decisionmaking body to include people with a broader range of professional perspectives. Justice Scalia made a version of this point in his dissent in Romer v. Evans when he accused the majority of "reflecting the views and values of the lawyer class from which the Court's Members are drawn." He can be read to have said something similar in his concurrence in Cruzan, stating that the Justices were no better qualified to decide the constitutionality of Missouri's limits on the removal of a feeding tube from an unconscious patient than would be "nine people picked at random from the Kansas City telephone directory." But in both cases, Justice Scalia was actually making a quite different point: that because the lawyers have no special training or legitimate expertise in medicine or moral philosophy (or, he might add, theology), they ought not to be reading the Constitution to displace majoritarian decisions in these areas.

Justice Scalia has lost that battle, however. (He's also on both sides of it, as he fully endorses the Court's equally controversial use of the Equal Protection Clause and 5th Amendment Due Process Clause to displace majoritarian decisions regarding affirmative action, but let's put that inconsistency aside.) Given that the Supreme Court does decide morally divisive issues, should its membership include non-lawyers? The French Conseil Constitutionnel includes non-lawyers, as do some other constitutional courts around the world. This would not work very well in the U.S., however, given that our Supreme Court hears not only constitutional cases but also, indeed mostly, more technical cases of statutory construction, administrative law, and the like. Thus, the closest thing one sees to actual calls for non-lawyers on the Supreme Court are statements seeking diversity among lawyers. When President Bush announced his nomination of Harriet Myers, he said he had received a lot of interesting advice, including the suggestion of appointing someone who was not a lawyer. This was bad marketing, because it got translated as: "I couldn't quite take that advice, but I went halfway by nominating someone whose legal experience and skills make her relatively unqualified for the job." It recalled Senator Roman Hruska's ill-advised defense of President Nixon's nomination of Harold Carswell: "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?"