Accessibility links

Judicial Experience Not Requirement for Serving on Supreme Court

President Bush recently nominated White House counsel Harriet Miers, a Texas lawyer and long-time friend of the President's to serve as an associate justice on the U.S. Supreme Court. Critics have raised questions about her qualifications, in large part, because she has no experience as a judge. But there is no requirement to have experience as a judge to serve on the Supreme Court.

The U.S. Constitution does not specify what qualifications are necessary to merit nomination to the Supreme Court. The Constitution does not even require nominees to be a certain age, gender, or even have U.S. citizenship.

Leon Friedman, a professor of political science at Hofstra University, says that, historically, presidents have chosen nominees who have a wide range of legal experience, not necessarily on the bench. "If you look at the totals of everybody that's been appointed, 47 have been federal judges out of the 110 appointed. Before the 1950s, it was rare for a judge to be picked," professor Friedman says. "Roosevelt had nine appointments to the Supreme Court. Only one was a federal judge. He picked two senators, the Attorney General, the Solicitor General [lawyer representing the U.S. government before the Supreme Court], a law professor, the chairman of the FCC [Federal Communications Commission], another person, and only one federal judge."

In the last 30 years, however, all of the nominees to the Supreme Court have had some kind of judicial experience, either on the state or federal bench. The last time a President selected a nominee who wasn't a judge was the early 1970s -- when President Richard Nixon picked Lewis Powell and William Rehnquist.

David Yalof, a legal scholar at the University of Connecticut, says there's been an assumption that the trend would continue. "A norm of judicial experience has somehow taken over since the early 1970s, where the last 12 or so nominees have all had some judicial experience," Mr. Yalof says. "I think the assumption has taken hold, that 'we don't consider nominees for the Court unless they've been a judge somewhere else.' There is that complaint, but it doesn't really square with the history of Supreme Court appointments."

The complaint -- in the case of nominee Harriet Miers -- comes from many conservative Republicans, who have a majority in the U.S. Senate, which has the power to confirm or reject nominees. They point out that Ms. Miers is not a judge and not an expert on constitutional law -- unlike John Roberts, Mr. Bush's first high court nominee, who impressed even the President's liberal critics with his legal acumen and was sworn in earlier this month as Chief Justice.

Some influential conservatives in the Senate say they would have preferred a nominee with a public record that would indicate how -- as a justice on the high court -- she would apply the Constitution to the most pressing legal issues of the time.

Many conservatives have made it clear that they do not want nominees, for instance, who agree with the high court's historic ruling in 1973 legalizing abortion. The majority of the nine justices at the time ruled that women in the United States have a right to abortion because -- in the words of the decision -- women have a constitutionally protected right to privacy.

"The conservatives in the United States Senate and elsewhere very much want a 'strict constructionist' who will not read broad rights of privacy and other broad rights into the Constitution," says David Yalof. "Many of the Democrats in the Senate and those who favor a looser construction, want to see justices stand up for minorities, stand up for the oppressed, reading the Constitution with that kind of sensitivity."

President Bush and his advisers have sought to assure conservatives that Ms. Miers is qualified for two reasons: her record of legal experience as a corporate lawyer and government official in Texas, the president's home state, and as his longtime legal adviser and confidante. And her legal philosophy: Mr. Bush has guaranteed his conservative critics that Ms. Miers shares his and their views on the Constitution. He points to her traditional religious values as proof.

But Mr. Yalof says assurances are not enough for key conservatives in the Senate.

"The problem is that without a track record, no one is able to know for sure or even be able to check evidence whether or not that is true," he says. He points out that Harriet Miers has said she believes life begins at conception, which would lead one to believe she opposes the right to abortion. But, he adds, "She didn't say it as a political official. She didn't say it as a member of a court. She said it as a private individual to another private individual," he says.

"The notion she might have said that is not as convincing to many people because she didn't say it while she was judging a constitutional case, and I think that that's the big fear everybody has -- that once she gets on the court, she'll do a sudden turnaround," David Yalof says. "And it really won't be a turnaround because she's never been a judge before."

In fact -- as Leon Friedman of Hofstra University points out -- Mr. Bush can't guarantee how Ms. Miers will vote on any given issue because -- in the formal interview for the seat on the high court -- a president is not supposed to pose that kind of question to a nominee outright.

"What they're [Presidents] are not supposed to do is ask, 'How will you decide on abortion? Do you believe it's legal or illegal?' So the President will say, 'Do you believe in the strict construction of the Constitution?'-- which is a kind of way of getting to the issue of abortion," Mr. Friedman says.

While the President interviews nominees in private, the Senate will ask the nominee, while he or she is under oath "Did you give a commitment to the President to vote one way or another on an issue?"

Harriet Miers has won the support of some key conservatives on the Senate Judiciary committee, which will hold public hearings on her nomination in early November. But other conservatives and leading Democrats on the committee say they're waiting to hear how she answers questions about her judicial philosophy.