There's an awful lot wrong with how federal judges are chosen, ranging from "partisanship" to other, uglier purported qualifications. (Yes, there are many that are uglier than mere partisanship; go ahead, name a federal judge who was an avowed atheist at the time of nomination.) Here's my present wish list for judicial nominees, and I'd like to see at least a couple addressed immediately because they're long overdue.
• Making one's way in the world without a law degree is a pretty essential qualification… because, after all, almost everybody who is impacted by the law does. Even four years or so between undergraduate education and law school doing something would bring some really essential experience to the bench.
• And every once in a while, it wouldn't hurt to have judges whose way in the world without a law degree was in national service — military or the Peace Corps. But no academy graduates, please…
• Because the ranks of the judiciary need to be reinforced with the many, many, very bright graduates of schools not in Boston, New Haven, New York City, and (to a lesser extent) Palo Alto and such. Bluntly, any Editor of a flagship law journal at any of the top forty or so law schools is bright enough for any federal judgeship, including the Supreme Court; the rest is character and experience, and considering just how strongly the prominence and wealth of one's parents determines both admission to and success at Certain Law Schools1 that's… unlikely to be apparent from the c.v.
• A STEM degree. OK, a minor in a laboratory science will just have to do; the last Supreme Court justice with an undergraduate STEM degree graduated with a math (not laboratory science) degree in 1929 and left the bench in 1994. And given the on-average 0.4/4-lower GPA of non-premeds who even apply to those Certain Law Schools, that's just not going to change in the forseeable future — a forseeable future that is entirely about change, much of it instigated by science/technology/engineering issues that keep ending up in front of courts where undereducated judges can make egregious mistakes out of pure, and even acknowledged, ignorance (that the rest of the organized bar is in no condition to prevent or correct, given that there isn't any math or science requirement for entry to law schools… and it shows).2
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That meeting two or more of the above is more likely to include more historically… excluded? ignored?… candidates doesn't hurt. For example, I suspect that there are more than a few extremely bright black women (with appropriate judicial temperament, whatever the hell that actually means) who made their way in the world for a few years without a law degree and went to law schools other than the Usual Suspects. Hell, one of them was in my 1L study group; then there's my active-duty colleague who was a mixed-race woman with a civil engineering degree and — much later than I did, because she escaped being a beneficiary of the "peace dividend" — went to a top-40-but-not-Usual-Suspects law school after retirement…
- … not restricted to those Usual Suspects, either; consider, from Illinois politics of the not-so-distant past, a recent state Attorney General and a recent Congresscritter. Which reinforces "the rest is character and experience" in rather a different way, doesn't it?
- I will refrain from grousing about the almost-complete absence of STEM degrees on the faculty at the Usual Suspect schools, even among the faculty who teach intellectual property/technology-oriented law. At least not very much. OK, at least not any more than usual. Hell, even some of the most-prominent "technology-issue-related" faculty at Those Certain Law Schools got there with undergraduate backgrounds only in economics; this makes their considerations incomplete, not necessarily wrong (or at least not any more wrong than Judge Hand was… ok, I'm not helping much or being very gracious, am I?).