"Over 40% of the justices..."

You can't swing a legal brief these days without hitting an indignant (not indigent, as I originally typed it) Harriet Miers supporter vehemently shouting the statistic that 40% of all Supreme Court justices have had no prior judicial experience before their appointment to the Court. Bearing in mind the fact that conservatives are often given to misunderstanding simple facts (ho!), I thought I'd take a look at the actual numbers. And what do you know: they're right.

109 people (107 men, 2 women) have served as justices of the Supreme Court since its establishment in 1789. Every one has been a practicing lawyer in their pre-court life, but only 69 of them, or 63%, had prior judicial experience.

Among those appointed in the last...	# with prior judicial experience	% with prior judicial experience
25 years	8 (of 8)	100%
50 years	16 (of 21)	76%
75 years	22 (of 36)	61%
100 years	30 (of 50)	60%
216 years	69 (of 109)	63%

What does it all mean? Couldn't tell you. Without question, it's possible to be an excellent justice without starting your judicial career somewhere else. Those who have done it include Joseph Story, Salmon Chase, Louis Brandeis, Felix Frankfurter, and - of course - John Marshall. I suppose that if my objection to the Miers nomination was based solely on her lack of judicial experience, I'd now be shamefacedly changing my mind. But there's clearly a difference between "lack of judicial experience" and "lack of expertise." Every one of the forty non-judicially-experienced justices has had a record of accomplishment stretching well above and beyond "president of the Texas Bar."

Miers' status as White House counsel no doubt indicates that she's a fine lawyer. But that serves only as a jumping-off point, not as a qualification in and of itself. And in an administration so clouded by charges of cronyism (which has become quite the little buzzword, hasn't it?), it's even less of a qualification than it might initially seem.

I remain far from convinced that Miers is a good (or even mediocre) choice for the Supreme Court. But I am now convinced that a lack of judicial experience is not necessarily an impediment to Court performance. So way to go, conservatives!

And what of the argument that the Supreme Court is now required to hear cases of such complexity that prior judicial experience is all-but-required, and that this certainty is reflected in the fact that every justice appointed since 1971 has had some prior court experience under his or her belt? It's a fine argument, and it may very well be true. But this post is already several hundred words longer than I expected it to be, and I'm tired of writing it, so let's pretend I never brought it up.