President Trump says he will announce this week his nominee to succeed Antonin Scalia on the U.S. Supreme Court.
In a lucky — but little-noticed — coincidence, the eight remaining justices sent a subtle signal of their own earlier this month, when they declined a petition from Kelly Davis. Davis had asked the court to review his misdemeanor driving-under-the-influence conviction in the state of Montana on the grounds that it came after a trial before a non-lawyer judge.
The U.S. Supreme Court decided not to hear the case. It’s less definitive than a written opinion, but it’s nonetheless a message. If the current justices felt strongly that only lawyers can serve as judges, they’d at least have heard Davis’s appeal.
The leaks from the Trump administration suggest that the new president’s nominee won’t be a non-lawyer but instead will come from the conventional ranks of judges already sitting on federal appellate courts.
That’s too bad. No doubt there are plenty of strong candidates for the Supreme Court who are already on the federal bench. But if America can have a president with no experience in political office, surely we can have a Supreme Court justice who is not a judge, or maybe even not a law school graduate.
It was less than 100 years ago that the U.S. Supreme Court included not just one but two justices who did not graduate law school — Robert Jackson and Stanley Reed. The list of justices without prior judicial experience includes some of the most famous members of the Supreme Court, from John Jay, John Marshall, and Joseph Story through Louis Brandeis, Felix Frankurter, Byron White and William Rehnquist.
If Trump is looking for a name, my suggestion is my former partner in the New York Sun, Seth Lipsky, who is the author of a book about the Constitution. Lipsky’s New York Sun, which still exists on the Web though not in print (and where my writing sometimes appears), was one of the few newspapers to endorse Trump in the 2016 election.
What Lipsky has to offer is something that candidates who go straight from law school to a judicial clerkship and, quickly afterward, to the federal bench have less of: life experience and the wisdom it brings. He served in the U.S. Army during Vietnam, where he was a combat reporter for Stars and Stripes and, though he doesn’t like to talk about it, won medals for bravery. He covered the civil rights movement for The Anniston Star newspaper in Alabama, where he saw firsthand the work of Frank Johnson, the federal judge who was a hero of integration and voting rights.
Lipsky had a nearly 20 year career at the Wall Street Journal, in its Detroit bureau, as its foreign editor, as an editor based in Hong Kong and in Brussels, and as a member of its editorial board. As a newspaper and online publishing executive, he’s dealt with employment law, securities law, First Amendment law, contract law, and corporate law from the perspective of a business owner.
I attended a small dinner with Justice Scalia hosted by Lipsky in 2008. It was an off-the-record gathering, and Scalia was sensitive about ground rules. But I can say without violating any confidences that the justice and the newspaper editor seemed quite comfortable together. Sun editorials referred to The Great Scalia, or TGS.
Maybe the non-judge Supreme Court nominee should be someone other than Lipsky. Or maybe it should be for an opening other than the seat left vacant by Scalia. Maybe Trump already has his heart set, this time around, on some federal appellate judge.
But whether it is for this opening or the next, it’s a principle to remember: in addition to all the lawyers, our courts could also sure use some Lipskys.
Ira Stoll is editor of FutureOfCapitalism.com and author of “JFK: Conservative.” His column appears Sunday.