A Strike Against Egghead Prima Donnas?

Here's how Beldar sees it:

I'll grant you that the Supreme Court is more important; but if she's "well qualified" for a seat on the court of appeals, then it's a huge leap to "unqualified" — a word Prof. Barnett doesn't quite get to, but obviously approaches — for the Supreme Court. And with due respect to Prof. Barnett and other academics, being a law professor ain't exactly the school of "hard knocks" either, and neither is prior judicial experience the sole (or even the best) way to learn that which "hard knocks" teaches.

Indeed, Prof. Barnett fairly drips with law professor-type elitism when he writes this statement:

To be qualified, a Supreme Court justice must have more than credentials; she must have a well-considered "judicial philosophy," by which is meant an internalized view of the Constitution and the role of a justice that will guide her through the constitutional minefield that the Supreme Court must navigate.

Not to put a fine point on it: that's just nonsense. It would be the very, very rare practitioner — as opposed to law professor or, perhaps, public interest group lawyer — who's spent his or her career polishing up a "well-considered 'judicial philosophy.'" Indeed, one of the ways John G. Roberts, Jr.'s career as a practicing lawyer was so unusual — so different from what 99.9 percent of practicing lawyers' careers have been like — was that his private practice dealt almost entirely with appellate litigation, and most of that at the Supreme Court level. Prof. Barnett himself has argued at least one celebrated case in the Supreme Court, and perhaps he's had other experience practicing law outside the classroom. In any event, it's surprising, but also very disappointing and frankly a bit insulting, that he seems to think lawyers who are neither judges nor professors must be somewhat retarded.

If you restrict Supreme Court nominations to those individuals who've spent their lives living in that rarefied atmosphere, pondering constitutional minefields to the exclusion of everything else, then you're going to end up with a Supreme Court whose members are out of touch both with America and with nuts and bolts legal practice. You're going to end up with a Court full of prima donnas who can't "just" concur, but instead feel compelled to write countless separate opinions. You'll often have no majority opinion, but instead special concurrences, partial concurrences, separate dissents, and partial concurrences only in Part III-D-6(f) but not Part III-D-6(g) of another's minority opinion. You'll get a Court that on the same day finds a display of the Ten Commandments constitutional in Texas and unconstitutional in Kentucky. You'll get a Court that takes up an incredibly important issue like redistricting, one that's splintered the Court in previous years, and then just leaves things more splintered when it's done. You'll get a Court that flip-flops within the space of a few years on issues involving capital punishment and what the government may or may not do in an attempt to promote morality. And you'll never see another unanimous Court like the one that produced Brown v. Board of Education.

You'll get a Court, in other words, with all the failings that this Court has had for the last several years.