Supreme Court nominee Elena Kagan is a lawyer, but has never served as a judge. Strictly speaking, this is not a bar to her being appointed. In fact, at least 38 of the previous 111 justices had no judicial experience before joining the court. Two of them were chief justices, including William Rehnquist and Earl Warren.
The only requirements for a Supreme Court justice in the Constitution itself are pretty basic: to be appointed by the president with the advice and consent of the Senate. A nominee doesn't even need to be a lawyer.
Here are two exchanges — one recent and one much older — in which the possibility of a nonlawyer on the bench is entertained:
In the autobiography of Supreme Court Justice William O. Douglas, he recalls a conversation with President Franklin Roosevelt, who nominated him to head the Securities and Exchange Commission and then to the Supreme Court even though Douglas had never served as a judge.
FDR asked why lawyers were so conservative, why they turned out to be stodgy judges. I told him that there was nothing in the Constitution requiring him to appoint a lawyer to the Supreme Court.
"What?" he exclaimed. "Are you serious?" He lit a cigarette, leaned back and after a moment's silence said, "Let's find a good layman."
"You'll have to pick a member of the Senate," I said. "The Senate will never reject a layman as a nominee who is one of their own."
His face lit up and he said excitedly, "The next justice will be Bob LaFollette."
There was no vacancy then, and none occurred before he died. But a plan had been laid to shake the pillars of tradition and make the Establishment squirm by putting an outstanding, liberal layman on the Court.
And this from CBS's Face the Nation program on May 9, 2009, when host Bob Schieffer was interviewing Sen. Arlen Specter, a longtime member of the Judiciary Committee, who had just switched from the Republicans to the Democrats.
SCHIEFFER: I think a lot of people in this country are not aware that the Constitution does not say that a member of the Supreme Court has to be an attorney. Could you envision being for someone on the court who was not a lawyer?
SPECTER: I could. Mark Hatfield, the senator, was a person whom — I talked to Mark years ago and said somebody like that, Mark Hatfield who was a college professor, Mark Hatfield was a governor. He was a senator for many years. He had a deep understanding of the Constitution and many other disciplines. And when you come right down to it, that kind of diversity is — with the right person, it would have to be the right person — but I think it's a possibility.
Listen, the framers didn't require a lawyer. They had that understanding.
— Times staff writers Bill Duryea and Will Gorham