<p>No, I don’t see anyone on the horizon who is better qualified than Sotomayor. I do think there are some who might outshine Sotomayor in sheer intellectual firepower, but that’s not the point. I don’t think we’ve ever had a Supreme Court drawn from as narrow a base of experience as the present one, and the people you name—Wood, Kagan, Sunstein, Posner—would essentially compound that problem. Consider who’s on the Court and their backgrounds:</p>
<p>Ruth Bader Ginsburg: law professor, civil rights lawyer, federal appellate judge (DC Circuit)</p>
<p>Stephen Breyer: law professor, short stints in the Justice Department antitrust division and as assistant Watergate special prosecutor, federal appellate judge (1st Circuit)</p>
<p>John Paul Stevens: antitrust litigator, state-level special prosecutor, federal appellate judge (7th Circuit)</p>
<p>Antonin Scalia: 6 years private practice, several years in various federal government jobs, law professor, federal appellate judge (DC Circuit)</p>
<p>Anthony Kennedy: solo practitioner, law professor, federal appellate judge (9th Circuit)</p>
<p>Samuel Alito: assistant U.S. attorney, assistant solicitor general (U.S. Justice Department), deputy attorney general, U.S. Attorney, federal appellate judge (Third Circuit)</p>
<p>Clarence Thomas: assistant state A.G., federal political appointee (Department of Education, EEOC), federal appellate judge (DC Circuit)</p>
<p>John Roberts: deputy solicitor general (U.S. DOJ), private practice specializing in federal appellate litigation, federal appellate judge (DC Circuit)</p>
<p>All impressive credentials, right? But consider what’s missing. No one with experience as a local prosecutor, the level at which the vast majority of criminal prosecutions happen and where retail-level justice is administered. Very little experience on the current court with any kind of business law, even though commercial cases represent a very large fraction of all of civil litigation in this country, and commercial matters consume a disproportionately large fraction of all attorney time when you take into consideration all the transactional work that goes into making deals that will NOT end up in litigation. Justice Stevens is widely recognized as the only member of the current court who has any kind of extensive experience in business law, and his experience is largely confined to the antitrust area—important, to be sure, but a pretty exotic and in some ways narrowly isolated branch of business law. No one who has ever served as a trial court judge at any level. In short, it’s not much of an exaggeration to say the current Supreme Court is narrowly drawn from the ranks of federal government lawyers, law professors, and federal appellate judges, half of the latter drawn from the DC Circuit which primarily handles cases involving various agencies of the federal government. Each may have had an impressive career within that narrow domain, but there’s never been a time in our nation’s history when the Supreme Court was drawn from such a narrow spectrum of the legal profession and such arcane corners of American life, or represented such a DC-centric set of life experiences.</p>
<p>Now along comes Sonia Sotomayor. Experience: 5 years as a local criminal prosecutor in New York City, on the front lines of the criminal justice system. Six years as a commercial litigator in New York City, the commercial hub of the nation, specializing in intellectual property and international commercial litigation—both hot growth areas in business practice. Five years as a trial judge on U.S. District Court for the Southern District of New york (Manhattan and the Bronx), where she developed a reputation as a tough, non-nonsense judge, tough on criminal sentencing and knowledgeable about the complex business cases that came before her court, all the while managing cases efficiently and expeditiously. Ten years as a federal appellate judge for the 2nd Circuit seated in New York City, the appellate circuit that handles the highest volume of complex, difficult, and important commercial law cases in the country. (Just anecdotally, commercial lawyers I know say they live in mortal terror that any important business law case will get to the current Supreme Court because the Court’s ignorance in these areas is so vast that it represents a complete wild card on these matters; better to leave it in the 2nd Circuit which generally knows what it’s doing when it coems to business law).</p>
<p>Diane Wood, Elena Kagan, Cass Sunstein, and Richard Posner are all brilliant people and respected legal academics. But a seat on the Supreme Court isn’t a merit badge for being the smartest kid in the room—or even for being the best law professor. Essentially each of these people would compound the narrowness of the experiential base of the current Court—they’re people whose backgrounds are exclusively in academia, as federal government lawyers, and in Wood’s and Posner’s cases, on federal appellate courts (both on the 7th Circuit). None of them brings local prosecutorial experience. None of them brings a substantial background in business law. None of them has ever served on the front lines as a trial judge. None of them has practiced or served on the bench in New York City, the nation’s commercial hub. In short, they’re pretty much cut from the same cloth as the current Gang of Eight. They might write better law review articles than Sonia Sotomayor. But Sotomayor has the background and experience to make major contributions to the Supreme Court that these folks can’t even dream of because they come out of the same narrow academic-federal agency-appellate court revolving door that dominates the current Court.</p>
<p>That said, I think there’s a strong probability that both Wood and Kagan will end up on the Court before Obama is through. Stevens is pushing 90, Ginsburg has health problems, and Scalia and Kennedy are no spring chickens (both 73). If Obama wins a second term, he could easily have 2 to 4 more Supreme Court appointments.</p>