Did I Err?

Last week, I did a broadcast on Marketplace that the justices of the current Supreme Court collective have "strikingly little" experience of business law. The broadcast defined what I meant by business experience - and why it matters in today's context.

The Obama administration is challenging settled principles of commercial law in ways more radical than anything seen since the 1930s. In the Chrysler bankruptcy, it told secured creditors that they were unpatriotic profiteers for asserting their undoubted legal rights. That case now threatens to become a precedent for the looming General Motors bankruptcy and who knows how many other cases.

Yet the current court justices have strikingly little experience as business lawyers. Chief Justice John Roberts has worked for business clients, but always as an appellate litigator -- that is, as a kind of after-the-fact freelance pleader, not a counselor who navigates a company's way through the tangles of existing law. Only one justice, John Paul Stevens, has done much advising of business clients -- half a century ago. And Stevens is the most senior member of the court, aged almost 90.

So: I defined what I meant by a "business lawyer": a counselor and adviser, not a litigator. And I explained why such a background mattered so much. Businesses in the Obama administration will have to contend with a much more radically uncertain legal environment. It would be useful to have somebody on the court who had deep experience coping with the consequences of such uncertainty.

I don't suggest that everybody on the court have such a background - only that somebody should

In the past, eminent corporate counselors have often found a place on the court. Stevens for example was a famed antitrust lawyer in Illinois. Lewis Powell, nominated by President Nixon, was one of the nation's leading corporate attorneys, a past president of the American Bar Association

Interestingly, high-level business experience was more common on the liberal Warren court than on the more conservative courts of recent years.

Stanley Reed had gained a reputation as the leading corporate attorney in Kentucky when Franklin Roosevelt appointed him to the Supreme Court in 1938.

Although his business career was obscured by his later and even more outstanding achievements, Robert Jackson achieved real distinction as a general business practitioner in upstate New York during his 20 years in private practice from 1913 to 1934.

Charles Evans Whittaker - ok, not one of the greatest justices! - was a big corporate lawyer in Kansas City for three decades before President Eisenhower nominated him to the high court. (After he resigned from the court, he went on to become the chief counsel to General Motors.)

Abe Fortas, the last of the justices to serve under Earl Warren, was a legendarily central figure in American business law as a name in partner in the firm then called Arnold, Porter and Fortas.

As I noted when I reposted the broadcast here at FF, I'm not suggesting that the current judges are utterly untouched by business law. Anthony Kennedy worked as a lawyer-lobbyist in Sacramento. (As I didn't say but should have noted, Clarence Thomas worked in the corporate counsel's office at Monsanto.) The point is: their business experience has been brief, or at a less than high level, or else has taken the form of litigation after the fact rather than counseling a client through the kinds of difficulties likely to be created by the Obama administration's reworking of American commercial law. Nothing wrong with any of that - but it's a gap.

And given that we are all talking these days about the importance of judge's backgrounds to their decision-making, it seems to me a highly relevant gap.

Shortly after the broadcast, I received an email from Bernard Harcourt, a law professor. I normally don't quote private emails without permission, but since Prof. Harcourt has felt free to quote mine to him, I think we can dispense with the formalities.

I was floored to hear your comment on Marketplace yesterday evening. I’ve posted a response on the University of Chicago Faculty Blog here:

I do mean what I say regarding the fact that you should both retract your comment and support the nomination for the very reason you discuss—that is, if you have any integrity whatsoever.

I replied as follows:

I take your points about the limits of blogs. One of their other failings is that they lend themselves to overheated rhetoric.

As you surely know well, Sonia Sotomayor's private- sector work was very far from business counseling of the kind that I described. She worked mostly on enforcing trademarks against counterfeiters. (Fendi was a big client).

By the late 1980s, she was spending much and very possibly most of her time on political & legal defense fund work.

Her resume looks in this way very much like Clarence Thomas' (a short stint in the corporate counsel office at Monsanto) and Anthony Kennedy's ( a lawyer-lobbyist in his father's firm in Sacramento), and very different from those of John Paul Stevens (the leading antitrust lawyer in Illinois in the 1950s and 1960s) or Lewis Powell.

I dont think that the record sustains the rhetoric you deploy in your piece.

That answer prompted an impassioned outburst by Prof. Harcourt here.

In reply:

Proponents of the Sotomayor nomination really do want to have it both ways. Here is a nomination made on ethnic diversity grounds. That's not unprecedented: ticket-balancing is as American as apple pie - or anyway, as Chicagoan as deep-dish pizza. But there is an unpleasant double-game going on here, where what is obvious may never be mentioned. Sonia Sotomayor spent 8 years in private practice, from 1984 to 1992.

She spent the first four of those years as a junior associate.

In her period as partner, she was also an active member of the board of the Puerto Rican Legal Defense Fund and the boards of two government entities, the State of New York Mortgage Agency and the New York City Campaign Finance Board. (The PRLDF had scored a big victory in the early 1980s invalidating a New York election plan on grounds it disfavored Puerto Ricans.)

It's this career history that led me to to suggest that Sotomayor's career could not be described as that of a business lawyer. Much as I admire Clarence Thomas, I would not suggest that his two years at Monsanto added up to a career as a business lawyer either.

Let me try this another way.

Some forms of diversity are cared about very intensely in American society. When somebody suggested that maybe Benjamin Cardozo qualified as the first "Hispanic" judge, the idea was laughed to scorn. It took more than just a Spanish surname to make one a Hispanic! It's a matter of life experience, of identification, of belonging.

Other forms of diversity we care about very little: work history for example. There, even relatively perfunctory experience suffices to punch the ticket and qualify one as, for example, "a corporate lawyer."

If Sonia Sotomayor joins the court, and it looks overwhelmingly probable that she will, we will have in some ways a final diverse high bench: 3 out of 9 members non white males.

Now look again. None has military experience. None has any background in science. None (so far as we know) has ever been a victim of a violent crime. All profess some form of organized religious faith.

Yet civil-military relations - issues of reproductive technology - crime and law enforcement - and church and state all loom large on the docket of the Supreme Court.

With all those other possible forms of categorization, we take for granted that good lawyers of high intellect can do the job. When it comes to those other aspects of human experience, believe that the requirement of fairness does not require box-checking.

As I said, ticket-balancing is an old American tradition. Republican presidents as well as Democrats have made their Supreme Court decisions with ethnicity highly in mind. Such decision-making can even be justified. But the requirement not to notice what is happening - the demand that we take talking points as truths - that is a much newer tradition, and an ominous one.