Why Stop with Non-Judges?

Senate Democrats have urged President Bush to appoint to the Supreme Court candidates from outside the judiciary. Their idea is to add diversity of life experience to the Court. But why stop with non-judges? Appointing non-lawyers would be even better. Appointing non-lawyers to the Supreme Court would keep it from drifting further to the left, without compromising its intellectual quality.<?xml:namespace prefix = o ns = “urn:schemas-microsoft-com:office:office” />


Judges typically drift to the left after being appointed to a high-profile post. The late Robert Puglia, the conservative Presiding Justice of California's Third District Court of Appeal, told me why.

Weak-minded judges drift to the left because they want approval from their peer group, lawyers.


And most lawyers are leftists. Bill Clinton beat the elder George Bush by only about a 6 percent margin among the general public in 1992, but trounced him by almost a 2-to-1 margin among lawyers. And even Republican lawyers tend to be socially liberal and vote Republican based on issues that seldom come before the judiciary, like marginal tax rates or national defense.


At <?xml:namespace prefix = st1 ns = “urn:schemas-microsoft-com:office:smarttags” />Harvard Law School, even most of my Republican classmates were fairly liberal. Two wrote a “Republican” perspective against the ban on gays in the military for the school paper, the Harvard Law Record. Others wrote defenses of affirmative action or hate-speech bans.  


After law school, I clerked for the late Larry Lydick, a senior federal judge in Orange County, California. The Los Angeles legal community all thought he was right wing, even though he was pro-choice and reluctantly approved consent-decrees that imposed racial quotas.

Compared to many of his colleagues, he may have been a right winger, since he voted for Reagan and did not make excuses for criminals. But he wasn't conservative compared to the average layman.


Even “conservative” lawyers don't have conservative peer groups, meaning that peer pressure slowly molds them into liberals, unless they have a well-developed judicial philosophy that keeps them from “evolving.”


I'm what passes for a conservative lawyer, since I've challenged affirmative action plans, college speech codes, and federal regulations.


But even I don't know many social conservatives. Much of the public is apparently Evangelical Christian, but none of the 50 guests at my wedding were Evangelicals, while several were gay. The public is overwhelmingly religious, but I'm agnostic, and my wife is an atheist. 


Many professions, like doctors, engineers, and bankers, are not as left-wing as lawyers. So appointing them to the Supreme Court would reduce the likelihood of extreme decisions, like those creating a right to partial-birth abortions, making up unwritten exceptions to anti-discrimination laws for racial preferences, or allowing employers to be sued for “disparate impact” for elementary job requirements that some minority applicants fail to meet. Appointing them to state supreme courts would help cut back on out-of-control punitive damages and frivolous lawsuits.


It would not be hard for non-lawyers to learn to perform the role of Supreme Court justice. The justices' clerks, fresh out of law school, already do most of their work behind the scenes. Many businessman already know business law better than most of the current justices, none of whom are experts on business law. Many high-tech employees understand intellectual property law better than most lawyers.


The only area where lawyers have a big advantage is in knowing the rules of evidence, and only trial judges—not Supreme Court justices—have to make split-second evidentiary rulings. And even lawyers frequently pick up their knowledge on the job. 


My ex-boss, Judge Lydick, never handled criminal cases prior to being appointed to the bench, where much of his cases involved crime.


That didn't stop him from speedily learning criminal law, simply by reading the legal equivalent of “Cliffs Notes.”  His criminal decisions were seldom reversed.


Appointing non-lawyers would also remedy judges' depressing economic ignorance. Lawyers and judges often can't do even basic math. (One of my Harvard classmates told a tax law class that 20 is 10 percent of 100). That's why judges love vague balancing tests rather than clear numerical standards.


Replacing lawyers on the bench with engineers, bankers, and other respectable professions would replace would-be social engineers with people who appreciate the economic costs of lawsuits.