Tuesday, April 13, 2010

On the Upcoming Nomination to the Supreme Court

Tim Kane wonders why there are no economists on the Supreme Court (Growthology):

There are nine justices, and nowhere in the Constitution does it say that a law degree is a qualification. Yet, what we have now is a monopoly of lawyers on the Court. A monopoly. All I'm suggesting is that a mere one of the nine have an economics degree. And to assuage the fears of the status quo, a nominee with dual degrees would be more than fine. My own colleague, Bob Litan, has a Ph.D. in economics from Yale AND a law degree from Yale.
The problem is even more concentrated than Tim lets on. This morning CQ Today had an article focused on why recent nominations have all been federal appellate court judges. Senate Judiciary Chairman Patrick J. Leahy has been pushing for a bit more competition in the selection process. From the article, which is gated:

In 1960, for example, the court included a former governor, an ex-senator, a law professor, a former U.S. attorney general, a former state judge and a former head of the Securities and Exchange Commission. As recently as 1971, Republican President Richard Nixon nominated a pair of non-judges, Lewis F. Powell and William H. Rehnquist, to the court at the same time.

But the trend toward selecting federal appellate judges, which began under GOP President Dwight D. Eisenhower, has accelerated in the past 30 years, said Lee Epstein, a Northwestern University law professor.
Perhaps Tim is right and we need more competition from other fields, but maybe even a different composition of lawyers would lead to more diversity of thought and perhaps even results that would be more agreeable to economists. The economomic analysis of the law has been around for some 50 years (often dated from Coase/Calabresi in 1960s) and I see no reason why someone with this background should be excluded from the Supreme Court, although I can't say that having vocal ideas on these issues will help anyone get appointed, since we seem to be fairly risk averse these days.

But by the same token there is no reason we shouldn't consider someone with a strong focus on science and technology and innovation policies more broadly. Perhaps the question is why we end up with so many generalists and so few specialists. Anyway, the basic principle is that innovation is generally good, even in non-high tech areas. So maybe Tim's call will get some traction.

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