Home / General / How many good candidates are there for Breyer’s seat on the SCOTUS?

How many good candidates are there for Breyer’s seat on the SCOTUS?


One of the really absurd arguments that used to arise all the time about SCOTUS nominations was over whether the candidate was the “most qualified” person for the position. This was always a ridiculous argument, because the idea that there’s one person out there who is “most qualified” to be a SCOTUS justice is silly: there are enormous numbers of people who are perfectly well qualified to do this particular job, and picking among them inevitably has essentially nothing to do with their qualifications per se.

How many such people are there?

Keep in mind the following: Being a Supreme Court justice is a really easy job. For one thing, it’s one of the easiest jobs a lawyer, or even a judge, can have. You probably suspect I’m being facetious, but I’m not.

It’s easy because:

(1) You only have to go to work between early October and late June, and only on about half the days during that stretch, maybe. Otherwise, you can “work from home,” aka watch Netflix all day while ignoring increasingly frantic texts from your clerks about yet another super boring administrative law case from the D.C. circuit, or spend hours gambling compulsively on the Draft Kings site (hi Brett).

(2) You have four law clerks and an army of administrative assistants to do all the tedious and unpleasant aspects of your job.

(3) Being an appellate judge in the top court in a legal system means that not only do you not do any trial work — being a trial judge is about 10 times harder than being an appellate judge — you also don’t have anyone reviewing your work, because you’re the court of final appeal. In other words, it’s like being the Calvinist God: whatever you opine is righteous by definition, no matter what wild assertions you might happen to make that day. (“Canst thou draw out Leviathan with a hook?” etc.)

(4) Legal argument is not, to put it mildly, an intellectually challenging activity. This is how you do it: If they say X, you say Y. That’s it. That’s all there is to it. Now it’s true it takes three years and $200,000 to learn to say Y when they say X, because otherwise I would need to get a real job some day, but that mystery aside, it’s just not very hard, even from a brain toiling perspective — and let’s not forget that brain toiling itself is the easiest kind of work there is, relatively speaking (Anybody who denies this is in desperate need of some Maoist-style re-education, via being forced to do the kind of work 99% of humanity does every day).

OK, so how many people are we talking then? A good candidate needs to be familiar with the kinds of arguments that take place in appellate courts in the United States, but that’s around 1.5 million people in the USA, if we count all the people with law degrees, and all the people in associated lines of work who are familiar with those arguments even though they didn’t go to law school.

I mean how absurd would it be to claim that somebody like Scott Lemieux isn’t “qualified” to be a Supreme Court justice? Very absurd in case you’re wondering. Scott wouldn’t be qualified to be a trial judge or a personal injury lawyer, but again those are hard jobs in comparison to being an appellate court judge, since they require various kinds of specialized technical and practical knowledge etc. Being an appellate court judge is, comparatively speaking, real real easy. You just have to know that if they say X you say Y.

Now obviously there are a lot of pretty dim people with law degrees, so let’s just say arbitrarily that you have to be in the top 10% of law talkers to be “qualified” to do this super easy job, where all the hard parts are done for you by other people. Let’s see, take away a zero, what is that — hey 150,000 “qualified” candidates to be on the SCOTUS!

In all seriousness, I think this is probably a big underestimate. The most prestigious jobs are always the easiest to do, because somebody else always does all the real work, while you just have to show up and act like you’re “brilliant,” which of course you are, because being “brilliant” enough to be a competent appellate court judge is about as hard falling off a turnip truck.

You can do this same exercise for pretty much any really high status job, with some obvious but fairly rare exceptions — brain surgeon etc. But the easiest jobs in any institution are generally the highest paying and most prestigious, and this certainly holds true in the legal system. Hence the real answer to the question of how many qualified candidates are there to fill Stephen Breyer’s soon to be open seat is: more than you can possibly imagine.

Because of the meritocracy ™.

  • Facebook
  • Twitter
  • Google+
  • Linkedin
  • Pinterest
It is main inner container footer text