The SCOTUS Nominee and The Tissue Box Test

I want to talk about tissues and the law and Supreme Court nominees. As the legal blogosphere and political Washington buzz about the judicial philosophy President Obama will be looking for in a judge to replace Justice David Souter — and what underrepresented social niche the nominee will come from, be it female, black, Hispanic, gay, etc. — what I want to know is if the nominee has ever had a box of tissues on his or her desk. For clients.

I want a nominee that knows what it’s like to have someone cry in their office. I want a nominee that has been there when someone tells them that their mother/father/brother/daughter was arrested/injured/killed and that they are desperate for help.

I want a nominee to know what it’s like to see real people — not political philosophies or corporate giants trying to add a few cents per share to their earnings — in their office in distress, and to represent them. I want a nominee that has experienced being the last, best hope for a downtrodden individual and the problem brought in the door. I want someone who knows what it’s like to be the underdog against corporate or government interests.

I want a nominee to know what it’s like to make the rent. To pay an employee. From their own pocket and not someone else’s. To answer the phones. To argue the case. To battle against deception. To actually practice law in the real world instead of in the ivory tower under the protective wings of others.

Our court is stuffed with Harvard and Yale law school grads, most of whom I think never actually tried a case for a private client, financed a case, or fought for an individual before ascending to the lofty heights of the appellate bench.

Last week Norm Pattis wrote on why we need a trial lawyer on the Supreme Court. He said:

A trial lawyer knows about raw human need and the law’s rough edges. It is a trial lawyer’s job to find the intersection of terror, fear and tears with the high doctrine and principle of the law. Not one member of the current court has ever sat with a client and his family during jury deliberations to discuss what will become of a family should the client be sent to prison.

We don’t have anything resembling a cross-section of society on the court. We don’t have people who look at broken bodies up front and personal in their offices. That’s why we have the tissue box. It isn’t to wipe our own noses.

At Simple Justice, Scott Greenfield picked up the Pattis theme with this about the birth of the trench lawyer movement:

In the trenches, we experience life, along with the huddled masses who care far less about whether a judge is a constructionist or originalist or texturalist. We know the consequences of decisions, together with the consequences of delayed decisions. Our view is ground level, and our understanding of how badly the law can hurt comes from holding the hands of the maimed. We know that people lie, cheat and steal, but we know that isn’t limited to the defendants. We have philosophies, but we live realities.

Perhaps life’s experience representing individuals will mean something different to the practitioner-judge than the philosopher-judge when the government strips away rights. Or corporations do a cost-benefit analysis and determine a few deaths aren’t so bad for their product because the profits will still exceed the legal payouts.

If Obama wants a judge who “understands that justice isn’t about some abstract legal theory or footnote in a casebook” then he better find a lawyer who once had that tissue box on the desk for the clients.
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sotomayor–the perfect choice
barack obama needed four important qualities in his first supreme court nomination: first he needed to nominate a woman and/or a person of color; second, he needed to nominate someone who would not face confirmation problems, third,

posted by liberalamerican @ May 29, 2009 12:58 PM

the case for tissue-box lawyers
for reasons that should be fairly obvious, there’s quite a bit i disagree with in eric turkewitz’s impassioned defense (in the context of selecting potential judicial nominees) of injury and criminal-defense lawyers.
posted by Walter Olson @ May 12, 2009 7:53 PM

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5 Responses Leave a comment

  • Comments 2010.6.21 at 00:33 | Quote

    Trial lawyers are forefronts of what its really like inside the courtroom, have first hand accounts of facts and circumstances of the case, have the opportunity to come face to face with the parties of the case. If you want to know how practice of law really works, trial lawyers are the best resource persons.
    # posted by Anonymous Postergal : May 12, 2009 8:06 PM

  • Comments 2010.6.21 at 00:33 | Quote

    Ok, assuming such a candidate is nominated and confirmed, then what? Should such a Justice attempt to render something other than dispassionate, blind justice? If not, what is the point? Would it just make you “feel better” knowing such a Judge is on the bench?

    Or do have something else in mind?
    # posted by Anonymous Alton : May 13, 2009 2:47 PM

  • Comments 2010.6.21 at 00:33 | Quote

    Ok, assuming such a candidate is nominated and confirmed, then what? Should such a Justice attempt to render something other than dispassionate, blind justice? If not, what is the point?

    Great question. The point is that everything isn’t clear-cut. That’s why there are split decisions. Think, for example, about the prohibition on “cruel and unusual punishment” or the prohibition on “unreasonable” searches.

    Someone has to make those calls. And it seems to me that a bench with varied experiences is better equipped to debate and resolve those issues than a homogeneous bench.

    And part of that is seeing people eye to eye that have gone through the problems in the real world, as opposed to the hypothetical world of the academic.

    That doesn’t mean we shouldn’t have academics. It just means we shouldn’t limit ourselves to such a small part of the population.
    # posted by Blogger Eric Turkewitz : May 13, 2009 3:16 PM

  • Comments 2010.6.21 at 00:34 | Quote

    My professor in law school once said, “you are not a lawyer if you have not been to trial or handled a full blown case.”
    # posted by Anonymous BloggerPal : May 14, 2009 12:32 AM

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