The liberal Chief Justice Earl Warren is today regarded as a towering figure in the law. Yet before President Dwight D. Eisenhower named him chief, Warren hadn't spent a day as a judge.
“He had been governor of California,” explains NBC presidential historian Michael Beschloss. “But he said, ‘Many of the things I learned while I was governor might be very helpful to the Supreme Court,’ because while the court to some extent draws on large theory, it's also a very political place. You have to form coalitions. And you also have to be pretty exposed to recent issues, and that's something that a former governor is.”
In fact, a host of big names on the court got their courtroom start on the highest court in the land. They include the trailblazing John Marshall, Byron White — nominated by President John F. Kennedy — Harlan Fiske Stone, William O. Douglas and Louis Brandeis.
Monday, President Bush seemed anxious to remind the nation of another big name in the same category.
“Justice Rehnquist himself,” reminded Bush, “came to the Supreme Court without prior experience on the bench, as did more than 35 other men, including Byron White. And I'm proud to nominate an outstanding woman who brings a similar record of achievement in private practice and public service.”
In fact, of the 109 justices who have served in all of U.S. history, there were 40 — nearly 40 percent of the total — who never served a day as a judge.
“It's actually a plus,” says Kermit Hall, president of the University at Albany and editor of the Oxford Companion to the Supreme Court of the United States. “Because it brings someone with some additional and new kinds of experience into a group of people whose lives have been pretty much consumed with working inside the judiciary and inside the law in a very tight-knit way.”
The late Chief Justice William Rehnquist said in March 2004, in fact, that variety on the court is a good thing. “You don't necessarily have to have been in politics,” Rehnquist said. “But it helps if you have people who have been in different branches of government.”
The question now: Is Harriet Miers’ experience in the executive branch and private practice enough experience for this big a job?
“What may matter,” says Harvard University Law School professor Laurence Tribe, “is not only no judicial experience, but there seems to be no kind of national experience, no occasion when her client was the Constitution of the United States.”
Her client right now is President Bush, who Monday put his full faith in his lawyer and friend.
“I think what President Bush is saying is, ‘I cannot predict what Harriet Miers, if confirmed, will do on the court for 10 or 20 or 30 years, if she's there,” says historian Beschloss. “But I've known her for a long time. I think I know her heart.”