Merrick Garland

How About a Non-Lawyer, Non-Ivy Leaguer, on the Supreme Court?: Instapundit

Also suggests that Senate prepares standing list of candidates.



Glenn Reynolds, who runs the influential Instapundit blog and teachers law at the University of Tennessee, has a novel idea regarding the Supreme Court. Isn't it about time we get a non-lawyer on the bench?

In USA Today, he writes,

When the Supreme Court is composed of narrowly specialized former judges from elite schools, the likelihood that the law will be comprehensible to ordinary people and non-lawyers seems pretty small. (In addition, a recent book by my University of Tennessee colleague Ben Barton makes a pretty strong case that lawyer-judges systematically favor the sort of legal complexity that, shockingly, makes lawyers rich. He, too, recommends non-lawyer judges, which, as he notes, are common in other nations and were common in colonial America.)

The Supreme Court is one-third of the federal government, and the other two branches, Congress and the presidency, are already dominated by lawyers. But there are hundreds of millions of Americans who aren't lawyers, and surely some of them are smart enough to decide important questions, given that the Constitution and laws are aimed at all of us. Shouldn't we open the court up to a little diversity?

Reynolds also suggests that the Senate take the "advice" part of its constitutionally mandated "advice and consent" role in confirming SCOTUS appointees more seriously. He suggests the World's Greatest Deliberative Body prepare and maintain a list of solid candidates that they would give the president in the event of an opening. If the president picks from that list, confirmation hearings would be quick and painless. If the Senate provides a list of bums, the president could easily offer up a quality candidate that would look good by comparison.

These are interesting ideas, to say the least, and if they have no chance of being implemented any time in our lifetimes, at least they give some food for thought.

Read the whole article here.

Damon Root took a look at Supreme Court nominee Merrick Garland here.

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  1. I would support Judge Andrew Napolitano 🙂

    1. Well, we wouldn’t have to worry about another Justice not asking questions from the bench

      1. The problem will be when his opinions contain no punctuation but question marks and commas.

  2. Glenn Reynolds, who runs the influential Instapundit blog and teachers law at the University of Tennessee

    Is that how they say it in Tennessee?

    1. I thought they call those “book learnin folk.”

    2. All those dropped “R’s” from New England have to end up somewhere.

      1. I thought they were just moved to words ending with a vowel.

    3. Sure. Anyone who says “warshes” is going to add extra r’s all over the place.

      1. So you’re saying that, in the end, the issue of the dropped Rs is a wash?

  3. I’d settle for a lawyer who can correctly and consistently apply constitutional protections.

    1. What about a “Constitutional scholar”?

      1. I thought Obama was that to teach at Harvard 😛

        1. It was a title only. He never actually taught it.

    2. Why not Ron Paul?

  4. Sounds like a plan to me dude.

    1. Was anyone actually been suckered into clicking on this link? If so, what does it contain? A get rich quick scheme? The mathematical equation to cold fusion? Nude photos of my mother? The remote possibility of the last one deters me from finding out myself.

      1. I just clicked on it so you wouldn’t have to.

        It’s for a company called Ultimate Privacy. They offer anonymous VPN, anonymous SMS, anonymous chat, etc., for 4.97$/month on an annual basis (why not 5$/month??).

        1. All that fancy software, yet they couldn’t get a bot with more personality than a goldfish.

        2. Cheers!

  5. I have long said that juries should be able to void laws, permanently and not just for a specific case, that they cannot understand. Similarly, any appeals court which cannot unanimously agree must void the law at stake, or find the defendant not guilty, on the basis that if a law is so vague or unclear or confusing that learned judges cannot agree on its meaning, it is far too complicated for mere mortals.

    1. ^This^

      The insistence on precedence, no matter how tangentially (ir)relevant is, or should be, an embarrassment to our justice system. See Strong Encryption v. All Writs Act. I think it’s pretty clear that the legal system has way too many ways to grow into a tangled mess and way too few machetes to keep it in any kind of check.

      1. Whereas the insistence on the arbitrary proclamations of a group democratically elected know-nothings is the essence of rational law. Nice and clean with no mess and justice as the utmost priority, that’s what we get from glorious statutes.

    2. The problem with precedence is that in reasoning by analogy, after several steps you end up far away from where you started. Case A does not quite fit under a certain statute, but is close, so an analogical interpretation is used. Along comes case B, which is a lot like case A, so the case A result gets interpreted a bit more. Etc. By the time you get to case E or F you are in a situation not even close to the original statute, but it’s still being indirectly applied.

  6. What we need is two supreme courts. One can be like the regular old one and decide on tricky or novel legal questions that come up in trials and lawsuits. The other can have the sole purpose of finding and eliminating unconstitutional laws. Have the latter one composed like a jury of non-lawyers, maybe 100 people who serve a short term. Anyone subject to US jurisdiction has standing to challenge any law. Have them read the constitution and then they all vote on whether the law is constitutional or not.

    1. I like this, but I don’t think it needs a 4th body. Any new laws require a 3/4 majority from House, Senate, and sign off from the prez. However, laws can be repealed if at least half of House and Senate approve, and it needs no sign off from POTUS. Laws should be hard to set up and easy to take down.

    2. How democratic this would be. I imagine in this court “cus you got to respect police authority” would probably be considered a valid constitutional argument. Have you actually met the people who you share this country with?

  7. “The Supreme Court is one-third of the federal government”


    Art. I, Sec. 1: “All legislative Powers herein granted shall be vested in a Congress of the United States…”

    Art. II, Sec. 1: “The executive Power shall be vested in a President of the United States of America….”

    Art. III, Sec. 1: “The Judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish….”

    So the supreme Court *and* the lower federal courts make up the third branch of the U.S. government.

    1. The lower courts are optional. And the Supreme Court is, well, supreme. It’s not inaccurate.

    2. Congress legislates, i.e.; writes the laws. The Executive faithfully executes the established laws and oversees the functioning of the government. The Judiciary interprets the laws, especially when there is a dispute about their application and enforcement.

      It’s not really thirds, like they are sharing a particular job, role, or responsibility. More like division of labor, similar to my wife and me; she does laundry, i do all the yard work

  8. I’d say educate jurors – and grand jurors – about their responsibilities. They’re not rubber-stamps for judges and prosecutors, they can and must think for themselves, which means if they think a law is unconstitutional they shouldn’t enforce it.

    1. Setting aside one of nine Supreme Court seats as the “layperson’s seat” while continuing to recognize the Court as the Sole Authorized Expositor of the Constitution simply means that eight lawyers instead of nine will be making public-policy decisions for the country, with a tiebreaking vote for the layperson if it’s 4-4.

      We’d still have a situation where any five lawyers on the Supreme Court claim the power to dictate to everyone else how the Constitution “evolves and changes to meet the needs of the modern blah blah blah.”

  9. I nominate myself. I have never studied law, nor have I served on the Bench, which makes me perfect, as my guidelines will be what actually appears in the constitution.

    1. See? This is why we can’t have non-lawyers on the supreme court. Because they won’t know how to interpret the words of the Constitution to get them to mean the opposite of what they actually say. You need alot of legal education to be able to do that.


      Not being a lawyer either, I’ve found this old gem of a paper to be most clarifying as to the nature of our legal system and how it has evolved over the last two centuries. Any lawyers care to chime in?

      *It’s a fairly lengthy paper, FYI.

      1. That paper needs updating… the question about the First Amendment needs answer like “Congress may pass a law prohibiting hate speech.” to catch more progressives.

        1. Ha! The flippant, smart-ass response aside(not a criticism mind you, you’re a person after my own heart), I’m a little disappointed that I didn’t recieve an analysis from a practicing lawyer on the merits of the author’s conclusion. Oh well. Perhaps I’ll post it again if or when it pertains to a future article. Moving on…

  10. I say this as a lawyer. The law is not that difficult of a subject. It is really no more difficult than any other liberal art and much less difficult than the hard sciences. Things like fluid mechanics or atomic physics are hard. The law is not. Anyone with good reasoning and reading skills can understand the law.

    One of the most overrated jobs in the world is that of appellate judge. They get all of the facts handed to them and have the job of figuring out how the law applies to it. Anyone of good intelligence and judgement could do that.

    What is hard is the facts. Trying a case is difficult. Figuring out the truth when six different people seem to have well meaning and sincere but differing opinions about it is hard. Trying to convince a jury your version of the truth is hard. It is the human element of the law that is difficult. The intellectual element is child’s play by comparison.

    So yes, we don’t need lawyers on the Supreme Court. These people have convinced themselves and the country that they are some kind of intellectual elite class. They are not and do not need to be.

    1. “One of the most overrated jobs in the world is that of appellate judge. They get all of the facts handed to them and have the job of figuring out how the law applies to it. Anyone of good intelligence and judgement could do that.

      “What is hard is the facts. Trying a case is difficult.”

      So it’s the difference between being a restaurant critic and being a cook.

      1. “So it’s the difference between being a restaurant critic and being a cook.”

        Good analogy. I like that Eddie.

    2. Anyone of good intelligence and judgement could do that.

      Based on the infinitesimal number of people who actually display these characteristics, I’d say that defends elitism handily.

      1. Speaking of courts and good judgement:

        Yesterday, I was in Family Court to have a Continuance signed. I arrived about half way through what I thought was a regular Temporary Hearing. Except, out of nowhere while trying to make her case for temporary custody, the pro se Defendant decides to “address the issue of the adultery allegations” at which time she proceeded to admit to: being a swinger, selecting a partner from the internet and bringing that partner over to her house while the couple’s 9 year old son was at home (on several occasions) and smoking marijuana during this time.

        1. And in your good intelligence and judgement you got her number, right?

        2. So I should definitely defend myself? Got it.

    3. What John said. I will add that, if we have to have lawyers on the Supreme Court it would be nice to have an actual trial attorney on the Court. Defense bar or plaintiff’s bar, I don’t care but I think the experience with how our laws actually work in practice would be valuable to the Court.

      1. I am of the opinion that lawyers should be barred from being judges.

        1. Maybe, our magistrates don’t have to be attorneys and a lot of them are shitty judges. Of course, that could remedied with a more vigorous selection process.

      2. Sotomayor was an actual trial attorney, criminal and civil. Not coincidentally, she’s also one of the most reliable votes in favor of 4th Amendment protections.

    4. Also a lawyer, agree 100%. Save for a few highly technical areas, law is in fact quite easy, can be performed by anyone of reasonable intelligence, and really should not require seven years of post-high-school education.

      To the extent that the law has become esoteric and inaccessible, that is the result of self-important elites trying to elevate a simple exercise into an intellectual endeavor.

      1. that is the result of self-important elites trying to elevate a simple exercise into an intellectual endeavor. billable hours

    5. John, my Dad was a circuit court judge and I can remember him complaining vehemently about appellate court judges, for the reason you state. He had to control the trial while it was happening, while the appellate court judges could second guess him at their leisure.

      1. Trial court judge is hard. What your father did was difficult. He had to make split second decisions on things that really mattered. The appellate court gets to take its time and has the facts given to it. And not only that, but the two sides law out the relevant law in their briefs. You don’t even have to know anything about the law to start with. The two sides explain it to you. How hard do these clowns think that is?

        You can tell it isn’t hard because if you ever talk to appellate court judges they always have the same bitch, the alleged poor quality of the briefs they get. I am all for quality legal writing, but why should the appellate court judges care that lawyers do a shitty job explaining the law? Aren’t the judges paid to know the law themselves? What do they need the briefs for? They only complain about the quality of the briefs because they really have no clue about what they are doing and depend on their lawyers who practice in front of them to explain it to them.

        1. I’m getting an eerie vibe from the “second guessing” and “split second decision” verbiage. It sounds a lot like the excuses cops make for violence.

          I’m not defending the appelate division’s faults, but oversight of decisions made on short notice is a good thing to have, be it judges or police.

          1. We absolutely should have appellate courts. The problem is that is that the job they do is not that difficult and they still find ways to screw it up. My problem is not with the appellate courts so much as with the arrogance of the judges who sit on them.

  11. Mike Rowe.

    And “informed consent” is a joke when you need a lawyer to explain what the hell all that gobblety-gook means. How can you expect me to accept any responsibilty for following a law when I have no idea what it means? Laws can be dismissed for “vagueness”, how much more vague can a law be when it’s written in a foreign language?

    1. It is even more of a joke when it is jammed in between dozens of other forms and you are sometimes weeks or even months away from the actual event itself.

  12. “When the Supreme Court is composed of narrowly specialized former judges from elite schools, the likelihood that the law will be comprehensible to ordinary people and non-lawyers seems pretty small.”

    The gist of Heller, Citizens United, Kelo, NFIB v. Sebelius, Roe v. Wade, Grutter v. Bollinger, Gonzales v. Raich, etc. are entirely comprehensible to ordinary people and non-lawyers. It’s just that a lot of people don’t like those decisions.

    Just because the American people don’t like the Court’s decisions, doesn’t mean what the court did was incomprehensible.

    1. Where’s Wickard V Filburn?

      1. Most people don’t even know that exists. If they did, they’d understand it. It’s just that wheat is boring.

        The cases I listed are all on topics your freshman composition professor told you not to write about because they’ve been overdone. They’ve been overdone because they’re interesting.

    2. There it is, there’s all this focus on “if only the courts could *explain* themselves better!”

      It’s like how Obama would be more popular if only he could explain to the dumb voters what a good job he was doing.

      Sorry, the opposition to Kelo isn’t because the Supreme Court should have used smaller words in explaining the result. It’s because people say, “wait, the government can take my property and give it to someone richer because they make more campaign contributions or pay more taxes? WTF?”

      1. +1

        The other take is the one like in any given Filburn case, like UnCivilServant mentioned above.

        Stupid people don’t understand the importance of precedent! One doesn’t simply walk into Mordor and overturn Filburn!

        Believe me, the Court’s reluctance to overturn these things is entirely comprehensible. I know there is a ton of other case law built on that decision. And I want it overturned anyway. I want all that case law unwound.

        No, really.

  13. How about a Florida man for SCOTUS?

    I look forward to the rulings of a wise Florida man.

    1. He won’t last long. One session before you hear “Hold my beer and watch this”.

    2. “Hold my beer and watch me write a majority opinion on this!”

      1. Justices keep doing that and they’re still on the bench.

  14. Christopher Anvil, “Mission of Ignorance.” He posited a culture which had a Board of Dunces that decided if a law was understandable to a non-lawyer. The culture also had a rule that if you wanted a new law, you had to get rid of an old one.

    I like this culture.

    1. “Well, we’d really like to authorize a new Post Office, but unfortunately, we’d have to legalize murder.”

      1. SugarFree found the relevant passage for me.

        Government in the Burdeenite territories rests largely with the House of Mogg. As nearly as an outsider can comprehend, the House is a nonheredity monarchy and aristocracy, with a minimum of laws. One oddity is that property taxes increase when property value is permitted to decline. Another is that the Chamber of Confusion, or Legislature, is permitted to put only a certain fixed number of laws on the books. Beyond that number, a previous law must be revoked, or somehow consolidated with others, for each new law added. No new or changed law can become effective until it passes examination by the Board of Dunces, a seven-member panel whose function is not to pass on the fitness of the law, but on its comprehensibility; the Board of Dunces is made up entirely of men with no legal training.

        1. I like it.

        2. I like this quote from Heinlein’s The Moon is a Harsh Mistress:

          I note one proposal to make this Congress a two-house body. Excellent ? the more impediments to legislation the better. But, instead of following tradition, I suggest one house of legislators, another whose single duty is to repeal laws. Let the legislators pass laws only with a two-thirds majority… while the repealers are able to cancel any law through a mere one-third minority. Preposterous? Think about it. If a bill is so poor that it cannot command two-thirds of your consents, is it not likely that it would make a poor law? And if a law is disliked by as many as one-third is it not likely that you would be better off without it?

  15. In a town with one lawyer he will go hungry. A town with two lawyers and they both will be wealthy.

  16. “He suggests the World’s Greatest Deliberative Body prepare and maintain a list of solid candidates that they would give the president in the event of an opening.”

    I would give him a list right now and it would have one name on it:

    Judge Janice Rogers Brown.

    She is a black woman who rejects pretty much all of the New Deal era judicial creative reinterpretation of what powers are delegated to the federal government.

    Of course that would throw the left into a hissy fit and simultaneously reinforce the point that their continual blather about “diversity” is merely hypocritical nonsense.

    1. I just read her wiki.

      How do we get her on the Court?

      Wow. She’s full of awesome.

    2. Do you see and hear what the Left say about Clarence Thomas? I can just imagine what they’d say about a conservative black woman justice. They’d probably dredge up Anita Hill again to say that it was really Rogers Brown, and not Thomas, who made the pubic-hair-on-the-Coke-can joke.

    3. Her husband. Also awesome.

      1. Holy shit, that’s amazing.

    4. Without question the most pro-liberty judge on the DC Circuit (if not the entire federal appellate bench).

      There would, of course, be an onslaught of racist and sexist commentary about her from the left.

      1. Liberty is intolerant, because people must ask permission and obey orders in order to be free. Obviously this woman is intolerant if she supports liberty. In the name of inclusiveness she must be excluded from the Court, being that tolerant people do not include intolerant people. This is because tolerant people believe in equality, and someone who supports liberty is obviously inferior to someone who supports control.

        1. Are you auditioning for your own show on MSNBC?

          I hear that they have an opening over there, Harris-Perry got the boot.

          1. But does he have a lisp?

            1. Oh, thop it!

          2. I think they’ll just dress Maddow up in blackface and give her a third program to host. She’s already hosting that one where she dons glasses, combs her hair to the other side, and goes by “Chris.” A third shouldn’t be too much trouble.

            1. Oh well.

              I’m sure that there will be plenty of other opportunities to join the ranks of the professionally and perpetually offended.

  17. Non-lawyers on the Supreme Court? Hell, I’d be happy if they found a lawyer who did not come from the narrow clique of Law Review graduates from one of five or so law schools who clerked for Supreme Court justices.

    The simple fact is that 90% of all lawyers — forget about laypeople — are effectively disqualified from Supreme Court membership from virtually the day they walk into law school, and an additional 9.9% become disqualified based on their first year grades. This holds true no matter what the attorneys accomplish in their careers or how distinguished their achievements. No wonder their is such inbred thinking among the justices.

  18. until I looked at the draft of $7079 , I didnt believe that…my… mother in law had been actualie bringing home money in there spare time at there labtop. . there sisters neighbour haz done this for under 4 months and resantly cleard the dept on their place and purchased a new Lotus Carlton .try here ..

    ?? W?W?W. A?l?p?h?a-C?a?r?e?e?r?s.C?O?M

  19. I’m all for a non-ivy leaguer, but I kind of want someone who knows how the legal process works to be on the court. No lawyers would dumb it down considerably.

    1. The law and the legal process should not be so complicated and cumbersome that people who cannot afford representation are denied justice. Having lawyers on the bench only makes it worse.

  20. When the Supreme Court is composed of narrowly specialized former judges from elite schools, the likelihood that the law will be comprehensible to ordinary people and non-lawyers seems pretty small.

    I think that was the main idea.

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