Barrister Bits by Debra A. Newby - April 2017- Supreme Court Qualifications
DEAR READERS: Do you have a legal question on your mind? If so, please email me. Your name will remain confidential. This Q & A Legal Column is intended as a community service to discuss general legal principles and does not create an attorney-client relationship.
Dear Debra:
Just wondering, especially with the nomination of Judge Neil Gorsuch for the United States Supreme Court, what are the qualifications to serve on the U.S. Supreme Court?
Signed: Curious George
Dear George:
Believe it or not, while the Constitution does outline specific qualifications to be POTUS, it is silent on the qualifications for the 9 black robes of the highest court in the land. In fact, a U.S. Supreme Court Justice need not be a certain age or have a certain educational background. Heck, a Justice need not even be a lawyer or a law school graduate. Flashback to history: The last Justice to be appointed who did not attend law school was James F. Byrnes (1941-1942). Justice Byrnes did not graduate from high school and taught himself law; he passed the bar at the age of 23.
Although there are no specific qualifications for a Justice, a clear pattern has developed. Most Justices who have been nominated have a law degree from Harvard or Yale Law School, or other “top-tier” law schools like Columbia or Northwestern. Most have also held public office, worked as a lawyer, or served as a judge prior to their nomination.
So, once a Justice is nominated and confirmed by the Senate (by a simple majority vote), how long can they serve? The Constitution states that the Justice “shall hold their Offices during good Behavior”. Thus, the only practical reason a vacancy occurs is because of a Justice’s retirement or death. Only one Justice underwent impeachment hearings, Associate Justice Samuel Chase in 1805, amidst allegations of letting his partisan leanings affect his court decisions. The House of Representatives impeached him, but the Senate acquitted him. He continued to serve as a Justice until his death in 1811.
With the sudden and unexpected death of Justice Antonin Scalia last February (who served more than 28 years), the high court is at a crucial crossroad with the 9th seat being filled. Some observers comment that that during Trump’s four-year term, that as many as three other seats may be vacated. Why? Observers look at the age of the three oldest sitting Justices:Justice Ruth Bader-Ginsburg (84),Justice Anthony Kennedy (80) andJustice Stephen Breyer (78), and mistakenly presume that they do not have the required stamina to remain on the bench.
In terms of fitness, my bets are on Justice Ruth Bader-Ginsburg, the most senior justice on the court’s left wing, who has served since 1993. She ignored the calls during Obama’s first term to step down. Her scathing and precise dissents, which she either writes herself or assigns, has earned her a pep club/fan base and her own internet meme –Notorious RBG. She possesses the physical and mental acuity of a person thirty years younger. If anyone doubts her ability to serve, I invite you to simply try Notorious RBG’s weekly workout routine, by clicking this link: politico.com/magazine/story/2017/02/rbg-ruth-bader-ginsburg-workout-personal-trainer-elena-kagan-stephen-breyer-214821. Seriously. Try it. It’s a great article recently published in Politico Magazine, creatively written byBen Schreckinger, who interviewed Justice RBG’s personal trainer. I don’t know many 84-year olds, or even 35-year olds for that matter, who can do planks, pushups, and squats with a medicine ball like she does. I think Notorious RBG will outlast President Trump in terms of stamina.
Justice Anthony Kennedy (age 80) has been on the court since 1988 (Reagan appointee). I could not find any articles addressing the fitness for this native Californian, but suspect he stays in shape as the court’s “swing vote”. Associate Justice Kennedy often casts the deciding opinion in 5-4 cases, yet some observers note that he has not “swung as often or hard [to the left]” as his predecessor, Sandra O’Connor, the first female Justice.
I have high admiration for the high court…especially Notorious RBG, whose workout busted my chops.
Debra A. Newby is a resident of Monte Rio and has practiced law for 35 years. She is a member of the California, Texas and Sonoma County Bar Associations and currently maintains an active law office in Santa Rosa which emphasizes personal injury law (bicycle/motorcycle/motor vehicle accidents, dog bites, trip and falls, etc.). Debra can be reached via email (debra@newbylawoffice.com), phone (707-526-7200), or fax (526-7202).
