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An 'absence of experience' among justices

The room was filled by a sea of lawyers, dressed in tuxedos and gowns, talking louder than usual and using their advocacy skills to put the right spin on a joke. It was the 95th Annual Black Tie Banquet for the Baltimore County Bar Association, a function for lawyers and judges only. There, members of the county bar let down their remaining hair, have an extra drink and a few extra laughs. Dinner rolls have, on occasion, been thrown at the guest speakers, most notably at Vice President Spiro Agnew in the late '60s.

Within the party atmosphere, though, there are always pairings of lawyers throughout the room, their demeanors staid as they kick around 25 or 30 years of trial work trying to resolve a client's problem. It's a form of research — lawyers drawing off the vast experience of their colleagues.

Over the next few weeks, Congress will examine the credentials of Neil Gorsuch, the president's nominee for Supreme Court justice. His resume is academically impressive: Columbia, Harvard and Oxford, clerkships at the U.S. Court of Appeals and later at the Supreme Court. He worked for a sophisticated D.C. firm known for representing Fortune 100 companies, and he was appointed to the U.S. Court of Appeals as a judge when he was 39, after just 10 years of practice.

His background mirrors that of the majority of the other Supreme Court justices, mostly schooled at Harvard, Yale and Columbia with clerkships at the Supreme Court and the U.S. courts of appeal; a few were law professors; Ruth Bader Ginsburg did groundbreaking work with gender discrimination cases while working with the ACLU; others, like Justice Roberts mostly worked in more political jobs for the Department of Justice and the Office of White House Counsel. Justices Sonia Sotomayor and Samuel Alito had a few years experience as prosecutors.

These are all smart people, but there is an absence in their collective experience, which is a disservice to the American people. Excepting Justice Kennedy, who was a lawyer in small, private practice 40 years ago, the justices appear to have no experience representing ordinary citizens in the crucible of America's trial courts.

The Constitution and Bill of Rights set out the framework for American government and the fundamental rights of its citizens. These rights — the right of assembly, the right of free speech, the right to be free against unreasonable searches and seizures, the right to a speedy trial and the assistance of counsel — are all vital to our civic life. We don't think about these rights until they affect our family or friends, and then we rely upon lawyers to know and protect us from the heavy hand of the executive branch. Did the police have a proper warrant to search our home when our son was alleged to have had drugs in the house? Is my daughter free to protest in Washington in order to protect her reproductive rights? Does the government have the right to seize my business' bank account even before a trial?

We ask our trial lawyers to work through these problems every day, and they do so in the state and federal courts here in Baltimore and every county in every state of the Union. Many make a career of it, spanning 30 or more years, and they come to understand in a personal, immediate way how the Constitution, laws and judging affect the way we live our lives in the United States. Who among the current Supreme Court justices, or any potential candidate, has sat in an office with a client facing life in prison? Who among them has sat in a room with a young man whose child is about to be taken away by Social Services because of the results of an investigation? Which of them counseled a woman about to lose her business because of the enforcement of a civil or criminal seizure procedure? A review of their biographies indicates that the likely answer is none of them.

The Supreme Court would be a more balanced and wiser institution if it drew from any of lawyers who have spent their careers in the gritty place where the Constitution meets real life: in America's trial courts. Perhaps, one day, a more enlightened president will look at the nomination process and decide that a truly diverse court also needs a lawyer who has spent decades in the trenches of American justice. I was with many such men and women just the other night, eminently qualified by decades of representing ordinary men and women in the most critical moments of their lives.

Stephen B. Awalt is an attorney in Towson. His email is sba@kdattorneys.com.

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