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The U.S. Supreme Court justices have the experience they need in every category but one: recent work as litigators. All but one served as appellate judges before coming to the court. Together, they have 166 years there. But the most recent year in which a Supreme Court justice was a courtroom advocate is 1981 and the average date for the nine justices is roughly 1976. The high court has been said to have “seats” that a president should fill. One was the “Southern seat.” A lawyer who had practiced in the South served on the court from 1888 until Lewis F. Powell’s retirement in 1987. Then there was the “Jewish seat,” which began with Louis Brandeis in 1916, temporarily ended with Abe Fortas’ resignation in 1969, and re-emerged with the appointment of Ruth Bader Ginsburg in 1993. Today it can be said that there is an “African-American seat” begun by Thurgood Marshall in 1967. Perhaps it is time to consider the creation of a “litigator’s seat,” reserved for a lawyer who comes to the court straight from an active or relatively recent litigation practice. No slight is meant to the knowledge or skills of those currently on the court. Many of them were experienced litigators before they became appellate judges. The problem is that litigation practice is very different from the practice in 1976. A judge long separated from an active litigation practice will inevitably lose some of the “situation sense” that, in Karl Lewellyn’s view, holds the fabric of the law together. For example, technology has changed discovery. When I started my clerkship for Associate Justice Harry A. Blackmun in the late 1970s, the Supreme Court’s word-processing capabilities went no further than electric typewriters. The court had been using photocopy machines for about six years. Since then, technological changes have increased the opportunities for discovery, increased its cost and made it a central driving force in litigation. Judges routinely order discovery that costs far more than the $75,000 federal jurisdictional amount. Discovery is a force, however, to which the high court still pays scant attention. Unintended consequences Prior to 1977, there was, for all practical purposes, no commercial advertising by lawyers. Today, in a post- Bates v. State Bar of Arizona world, the yellow pages in even a modest-sized city has 100 pages of lawyer advertising and competes with billboards. With that advertising-which the Supreme Court wrongly predicted would be limited to price advertising of simple and routine services-has come the rise of the “mass action” case. Lawyers use commercial advertising to solicit cases against a defendant or a group of defendants. Yet when the Supreme Court encounters something like the West Virginia court system-which approved a mass trial in cases presenting 8,000 asbestos claims against hundreds of defendants-its reaction appears to be not disbelief but simply incomprehension. It refused to consider a due process challenge to those procedures in Mobil Oil Corp. v. Adkins. More recently, the court added fuel to the fire in Norfolk and Western Railway Co. v. Ayers, by approving recovery for “fear of cancer” even where the basis for the fear was a tiny statistical association-not causation-of which many plaintiffs were no doubt ignorant until told about it by their lawyers. The court’s lack of connection to the real world of lawyering has other effects, too. The number of lawyers in the United States has doubled since 1977. Their increasing numbers, mobility and use of advertisements have broken down traditional constraints on lawyer conduct. It is no longer true that what goes around comes around for an unprofessional lawyer. Yet various well-intentioned attempts to deal with that phenomenon have made it increasingly dangerous to practice law. None of the justices currently on the court has engaged in the internecine skirmishes brought on by vague interpretations of Federal Rule of Civil Procedure 11 as it was amended in 1983. By allowing vagueness, they encourage lawyers who work by the hour to misuse the rule as a stick to beat their contingent-fee opposing counsel. The court needs a justice who understands, firsthand, what law practice in the trenches is like today. It is even possible that, by nominating someone with relatively recent litigation experience, a president might end up with a candidate more amenable to a divided Senate. Such a candidate would have no written trail of published opinions for the daws to peck at. At the very least, such a nominee would know exactly how to present a case to the Senate Judiciary Committee. Luther T. Munford practices appellate and media law at the Jackson, Miss. office of New Orleans’ Phelps Dunbar.

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