Experience needed? The long history of nonjudge justices.
Nearly half of justices had no prior experience on the bench.
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"The difference between Louis Brandeis and Harriet Miers is that Louis Brandeis was an academic lawyer," says Stefanie Lindquist, a professor of law and political science at Vanderbilt University. "He wrote some very influential law review articles while he was in private practice. So he established intellectual credentials to serve on the court before he was elevated."Skip to next paragraph
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She adds, "That is something we are missing with Harriet Miers. We really don't have any paper trail that establishes any intellectual credentials."
Snobbery is no small part of the debate over Miers, analysts say. The fact that she attended Southern Methodist University rather than a top-tier law school like Harvard or Yale is seen by some as a mark against her. Yalof says that although a high number of justices attended elite law schools, not all justices did.
Lewis Powell went to Washington & Lee. Warren Burger attended the St. Paul College of Law. Thurgood Marshall attended Howard University. Hugo Black went to the University of Alabama, and Chief Justice Fred Vinson was a graduate of Centre College in Kentucky.
Yalof says the debate over who is most qualified for the Supreme Court is a false debate. Just because Miers isn't on someone's list of 100 most qualified candidates for a high court post doesn't mean she isn't qualified to do the job, he says.
"No one could possibly have thought in 1956 that William Brennan was on the top 100 list of people to become a justice of the Supreme Court," Yalof says. "At the time of his appointment, William Brennan had been a little-known state supreme court judge in New Jersey for seven years. He was far and away not considered the most reputable justice on his own court," Yalof says. "Was he qualified?"
Judge Brennan, appointed by President Eisenhower, went on to become one of the most influential justices of the 20th century.
In contrast, some high court nominees never measure up. Charles Whittaker was an experienced litigator and corporate lawyer. He served as both a federal judge and an appeals court judge. But was unable to adjust to life as a justice.
"He was one of the great failures in Supreme Court history," Yalof says. "He was overwhelmed by the job and quit after just five years."
Some justices learn and grow on the job.
"People now say that the [Miers nomination] is not a Scalia or Thomas nomination," says Whittington. "But at the time Clarence Thomas was nominated it wasn't clear that Thomas was that kind of nominee either."
He adds, "He has emerged subsequently as somebody who has this kind of strong distinctive voice on the court. It is possible that Miers would as well."
Professor Lindquist says the lack of an academic or judicial paper trail makes it difficult to assess Miers' potential ability to develop or clarify legal and constitutional doctrine.
"My guess is she would be a fine Supreme Court justice, but will she be a great Supreme Court justice - that seems less likely," she says. "John Roberts, on the other hand, is going to become a great Supreme Court justice. Whether or not I agree with all his politics, I think he is likely to be a brilliant Supreme Court justice."