Wednesday, October 05, 2005


Miers nomination

Commentary over at Findlaw about the Mier nomination.

From his piece:

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 . . .

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