A Lawyer’s Lament

Judge Brett Kavanaugh, President Trump’s nominee to replace retiring Supreme Court Associate Justice Anthony Kennedy, has great credentials. He is a strong pick to join the Court, and I hope the Senate acts on his nomination promptly.

But Judge Kavanaugh’s resume, while glowing, highlights an unfortunate fact about the Supreme Court. Of the nine current justices, all attended law school at Harvard or Yale (Justice Ruth Bader Ginsburg started at Harvard before transferring to Columbia and finishing her law degree there). Prior to joining the court, they were academics or federal appellate judges. As a Yale Law School graduate and current judge on the U.S. Court of Appeals for the D.C. Circuit, Judge Kavanaugh maintains the Court’s homogeneity in education and experience.

The United States Supreme Court is the highest judicial body in the country, but the country’s laws cover more than just classrooms and appellate courtrooms.

My colleague Congressman Jimmy Duncan, whose Tennessee district borders part of the Ninth District, made this point in a July 2 statement suggesting presidents consider picking nominees from a broader pool, with consideration for lawyers in private practice and with jury trial experience.

He said, “I think that we are eliminating many of the greatest lawyers in this Country by not even considering those who have represented a wide variety of people in a rough and tumble private practice.”

I agree with Congressman Duncan, who was himself a judge. It’s not such a bad idea to have a verbal warrior who has fought with his words in front of the hallowed benches of justice.

Considering the important place trial by jury occupies in our legal tradition, it seems downright foolish to deny its practitioners a seat on the body deciding the most serious legal questions.

Before the tongue-wagging from Internet trolls gets going, it should be noted that I do not now nor have I had any desire to be a Supreme Court justice. My calling is to be a lawyer/legislator. But having practiced law before juries, judges, and other tribunals, I recognize what the country misses when its highest court excludes such experiences.

The Court could encompass broader experiences beyond jury trial, too. Of course, the early Republic did not have a farm team of appellate court judges ready to go for the Supreme Court. John Jay was a politician and diplomat before George Washington appointed him as the first Chief Justice, and he returned to diplomacy and politics after he left the bench.

Before Virginia’s John Marshall became Chief Justice in 1801, he served in numerous political offices, including the House of Delegates. He was Secretary of State when President John Adams named him to the bench. Marshall drew on his practical experiences in addition to the legal education he received at the hands of George Wythe to become one of the most influential justices of all time.

Many justices similarly arrived at the Court with varied backgrounds throughout our history. When Sandra Day O’Connor, an Arizona state legislator and judge, was appointed in 1981, her fellow justices included Thurgood Marshall, a Howard Law graduate who practiced for decades on behalf of the National Association for the Advancement of Colored People, and William Rehnquist, who worked in private practice and politics for sixteen years before joining the U.S. Department of Justice.

Only in the past few years has academic or appellate court experience essentially become a job requirement.

The Constitution imposes no requirements on who can be named a Supreme Court justice except that they keep their office on good behavior. As far as qualifications for nominees, I believe anyone who has passed the Bar and who is considered to be in good standing is qualified. After that, it is a political choice by the President making the appointment and the Senate considering it. Considering the prominent role of the Supreme Court in American life, why not look for nominees that represent the breadth of American law?

None of this should be seen as impugning the professional accomplishments or knowledge of the men and women currently on the Court or Judge Kavanaugh. But the next time a vacancy occurs, I urge the President to look beyond classrooms and appellate courtrooms to find a justice. The Court and the country would be well served by it.

If you have questions, concerns, or comments, feel free to contact my office. You can call my Abingdon office at 276-525-1405 or my Christiansburg office at 540-381-5671. To reach my office via email, please visit my website at www.morgangriffith.house.gov. Also on my website is the latest material from my office, including information on votes recently taken on the floor of the House of Representatives.