A Non-Lawyer On The Supreme Court?
President Obama plans to appoint National Public Radio’s Nina Totenberg to the United States Supreme Court.
Not really, of course.
Totenberg may know more than most lawyers about the Supreme Court from her experience as an award-winning legal affairs correspondent for NPR.
But she is not a lawyer, and you have to be a lawyer to be on the court.
No. The Constitution sets forth no such requirement. Article Two provides simply that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court.”
So the president could appoint Totenberg or any other non-lawyer, and he or she would take a seat on the court after confirmation by the United States Senate.
But, no, President Obama has not announced a plan to nominate Totenberg.
However, the possibility of a non-lawyer appointment to the court is the premise of a very believable fictional story written by Ed Yoder. His book is Vacancy: A Judicial Misadventure.
Yoder grew up in Mebane and, like Totenberg, is a journalist who knows more about Supreme Court law than most lawyers. As a distinguished editorial writer and historian of American jurisprudence, he is the sort of non-lawyer who would be worthy of consideration for a Supreme Court seat.
The Pulitzer Prize winner has, in retirement, recently returned to North Carolina, where he graduated from University of North Carolina at Chapel Hill, edited The Daily Tar Heel, and won a Rhodes Scholarship. Afterwards, he got his start in journalism at the Charlotte News and Greensboro Daily News.
The central character of Yoder’s book, Ted St. Theodore, is, like Yoder himself, a University of North Carolina graduate, Rhodes Scholar, and distinguished journalist specializing in legal matters, who has returned to his native North Carolina for a happy retirement.
However, Ted St. Theodore brings something else to the table: a close friendship with the President of the United States. His friend, the president, has determined to nominate Ted to the Supreme Court.
This is where the fun begins. Senators are shocked by the president’s action and quickly pass a law that requires court members to be lawyers. The president says the law would be unconstitutional, but he signs it anyway so the Supreme Court can rule on its constitutionality. Then, using his recess appointment powers, he names Ted Chief Justice. So Ted has the opportunity, maybe the responsibility, to rule on a law that, if constitutional, would make him ineligible to serve.
Thankfully, Yoder makes all this complexity understandable and entertaining.
He complicates the story by telling his readers a secret. The president and Ted’s wife once had a very special friendship, one that has not completely gone away. Also, Ted himself has a small skeleton in his closet from an incident in a hotel room in France during his Rhodes Scholar days.
Yoder’s special gift to his readers is an informed, inside look at how Washington works.
There are days at Camp David and nights at the White House and participation in the public and private deliberations of the Senate and the Supreme Court. He puts readers in the shoes of the Washington political players, an experience a lot less expensive than running for office, and a lot more satisfying.
Paying tribute to Yoder on his 80th birthday last month, St. Louis University law professor Joel Goldstein wrote about Yoder’s columns, “They were thoughtful and undoctrinaire so that the reader could not anticipate the bottom line simply from learning the author’s name and topic. Instead, Ed’s columns had to be read from beginning to end, an experience invariably well rewarded with new and worthwhile information and insights elegantly delivered.”
That compliment sets a high standard for other columnists.
Welcome home, Ed Yoder.