an issue with amy coney barrett and most other supreme court nominees and justices

Sometime this Fall, Amy Coney Barrett will likely become a Supreme Court Justice. A lot of people are shedding tears over Mitch McConnell’s rush to get Barett on the court. Well, if you believe what politicians tell you about election year court appointment norms, I have a bridge I’d like to sell you.

Instead, I want to draw attention to an issue with Barrett and most other elite jurists. People who get appointed to that level – appeals courts and the Supreme court – usually have very little experience in criminal law. If you look at most justices on the Supreme and appeals court, they have spent very, very little time defending regular people on criminal charges. Usually, a Supreme court nominee goes to an elite law school, then works for the government at an elite level and then goes to work at a fancy law school. In the mix, they may spend a few years working in corporate law or in “boutique” firms defending unusual or elite clients. Very rarely do they have deep experience with criminal law, or even regular civil law. For example, I think the only Supreme Court justice that spent a lot of time in criminal law was Sotomayor – and she was a prosecutor. It is very rare for an elite judge to have spent an extended period in criminal defense.

Barrett’s biography indicate a similar trajectory, with some modification. After graduating from Notre Dame, she clerked for Scalia and then worked for Miller, Cassidy, Larroca & Lewin, which tends to represent high profile DC clients like Ted Kennedy, and then Baker Botts, which defends notable Republicans, such as Bush v. Gore. And then she returned to law school as a professor and then moved to the appeals court. Her academic specialty? Constitutional law. As far as I can tell, Barrett, like most jurists at that level, has very little experience with normal people with normal legal problems.

By itself, it’s not a problem. No lawyer can know every type of law, but when an entire legal system is full of leaders who actively avoid and lack experience of a major branch of the legal system, that’s an issue. I could go through and discuss issues where I may agree or disagree with Barrett, or the circus that Supreme Court nominations have become, but I prefer to argue for nominating bench that is diverse in terms of legal experience, and that may be just as important as demographic and ideological diversity.

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