May 28, 2009
A Transactional Lawyer as Supreme Court Justice?
Posted by Gordon Smith

While many people fret about Judge Sotomayor's views on abortion or executive power, others wonder about her views on business cases. Elizabeth Nowicki thinks this is "a pivotal time in American securities and corporate law jurisprudence" and infers, from Judge Sotomayor's service on the Second Circuit that she "has a strong background in sophisticated corporate and securities law cases." Indeed, she has written a number of securities law opinions, including the lower court opinion in Merrill Lynch v. Dabit, which the Supreme Court reversed 8-0, but Jill Fisch seems to have Sotomayor pegged on business law: "I don’t see this as one of her core interests.”

Given the growing importance of business law cases with the increasing federalization of business regulation, one of the factors that President Obama should consider in selecting his next nominee is whether that nominee is sophisticated about matters of business. Why not appoint a transactional lawyer? David Frum is right: our current justices don't know much of anything about business. And it shows when they try to write opinions.

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