Tuesday, May 11, 2010

Put a non-lawyer on the Supreme Court!

The nomination of Elena Kagan to the Supreme Court raises an issue I have written columns about for some 20 years now -- though none in the last couple of years. Ms. Kagan has never served as a sitting judge, and some will no doubt criticize her for that. But there's no requirememtn in the Constitution that a nominee be a sitting judge -- in fact, there's no requirement that a nominee be a lawyer. (At the time the Constitution was written, of course, the elaborate licensing laws built around lawyering had not been erected yet; people generally became lawyers by having another lawyer mentor them, serving what we would call an internship these days, and then hanging out their shingle when they thought they were ready.)

The serious point about the Supreme Court is that for better or worse it has become the final arbiter of law and social policy, and it would be useful to have people other than lawyers and experienced judges sitting there. The ins and outs of the law the court handles are not so difficult that they can't be mastered by a reasonably intelligent person. It just might be useful to have a novelist, a businessperson, a political scientist, a hard scientist, perhaps even a "community organizer" on the court to bring various perspectives to bear on the decisions.