Consideration of Another Form of Diversity in Replacing Justice O’Connor
Justice O’Connor is the only current Justice who has ever been an elected official. (Indeed, for a short while, she was Majority Leader of the Arizona Senate.) In this article in the New Republic Online, Akiba Covitz and Mark Tushnet argue (sensibly, in my view) that Presidents ought to appoint more politicians and “high-level executive officials” to the Court, beginning now.
They mention, as examples of current possibilities, Senators Cornyn and Kyl, and Judge Gonzales. The latter has never held elective office, but has served as Texas Secretary of State, Counsel to the President, and Attorney General. (For what it’s worth — not much, in all likelihood — I’m stickin’ to my longstanding prediction that the President will nominate Judge Gonzales, notwithstanding that the “smart money” is shifting elsewhere, and that he’ll do so in large part because of Judge Gonzales’ Executive Branch experience and perspective.)
An excerpt from Covitz and Tushnet’s article:
What’s lost when the Court is made up exclusively of distinguished appellate lawyers with limited political experience? Two things: an understanding of the way the law works in everyday life; and an understanding of the way politics works in Congress, the executive branch, and state legislatures.
Without a feel for how the law works in people’s lives, justices tend to treat constitutional law as a desiccated legacy from generations ago that, for some peculiar reason, matters today. Without a feel for how politics works, justices may be more likely to impose theory-driven constitutional interpretations that have no relation to how governments function. Even worse, justices might imagine that they are hard-headed and sensible people who really do want to make government work well–and then hand down “pragmatic” solutions that have nothing to do with the real world.
What’s needed at the Supreme Court is an infusion of an elusive characteristic: common sense. And one good technique for locating people with common sense is to look for people who have already demonstrated it, by managing a large bureaucracy well or by getting the endorsement of voters in election after election. Unfortunately, we’ve moved away from a system of judicial appointment in which political experience, public accountability, and demonstrated common sense mattered a fair amount. Now our system focuses on narrow professional qualifications, giving us justices who are cloistered smart people (one reason, incidentally, not to be taken in by the fawning of law professors who want people just like themselves to become justices)
This is a good perspective. I offer a couple of observations, and an alternative, but related, perspective.
The first observation draws from the conclusion of the Covitz and Tushnet article: “The president will pick conservative nominees; he was elected to do that. But let him pick a justice who has delivered real services to real people, who has asked real people for their support, who has breathed the air outside the corridors of appellate courts. And if our current political system is unable to give us such justices? Then that’s just another indictment of the system we’ve created.”
The experience which Covitz and Tushnet endorse may or may not yield the common sense that they desire in a justice. That experience does, however, provide just the sort of extensive public record which the partisans in the Senate would use to oppose a nominee. What is more, such a record would be the nominee’s own, not that of a client or administration which the nominee could hold at arm’s length. Given past experience, our current political system stands not merely indicted as Covitz and Tushnet suggest, but convicted.
The second, related observation is that the appointment of a politician does not necessarily provide a justice with “common sense.” Unfortunately, the current political system also places too low a premium on statesmanship — as opposed to ideological partisanship. Too few politicians, even those with the security of six-year senate seats and virtually certain reelection, are willing to reach across ideological and party lines for “common sense” solutions.
The alternative perspective I offer is that of a lawyer with an active, primarily trial, practice. While the Supreme Court might well benefit from the perspective of one who has spent time in the political trenches, what it needs more is a justice with extensive time in the trial court trenches.
The Supreme Court obviously faces difficult cases which often do not yield easy, straightforward answers. For this reason, some of the confusion and conflict in applying the Court’s cases is inevitable. However, a greater sensitivity to the impact of the Court’s decisions on the lower courts who must apply them and, more importantly, on the parties that must attempt to conform their conduct based upon those cases, would benefit everyone with a stake in the system.
Comment by John Perry — September 30, 2005 @ 9:54 am
These are very fair comments.
With the addition of Chief Justice Roberts, there are now eight former U.S. Court of Appeals Judges on the United States Supreme Court. Outgoing Justice O’Connor is the only one with state court — or legislative — experience. She also served as a prosecutor at one point in her career.
Compare this Court with past ones that included former Governors and Senators, as well as distinguished attorneys with extensive private-sector experience.
Courts of Appeals are important, but they do not deal with the same wide variety of cases that come before state courts. If the Supreme Court is now open only to candidates with judicial experience, it would be good to see a nominee with lengthy state court experience.
Comment by brassband77 — September 30, 2005 @ 10:35 am
Actually, Gonzales did hold an elective office as justices of the Texas Supreme Court are elected. Although he was first appointed by Bush, Gonzales later won reelection in 2000 against Lance Smith (Libertarian).
ML responds: Thanks much — I did not know that
Comment by belden — September 30, 2005 @ 1:46 pm
I disagree with the idea that judges need to have a “common sense” knowledge of the effects of law, workings of bureaucracy, or the legislative process. There are plenty of people in the executive and legislative branches, and plenty of lawyers engaged in the judicial system, who know how “the system” works, and how to make it work for them. It’s important that at least one branch be somewhat isolated from this style of doing business, who will instead take the long and theoretical view of the actions of legilatures and the executive.
SOC nonwithstanding, aren’t approaches like “pragmatism” and “common sense” just gateways to judicial activism? “Common sense” is so often in the eyes of the beholder, but law is supposed to be above that.
Comment by HeScreams — September 30, 2005 @ 2:10 pm
Covitz and Tushnet: “What’s lost when the Court is made up exclusively of distinguished appellate lawyers with limited political experience? Two things: an understanding of the way the law works in everyday life; and an understanding of the way politics works in Congress, the executive branch, and state legislatures.”
They have a point on the second “thing,” but this is a truly astonishing statement on the first. Among the people I have dealt with in my career, those who have spent their entire adult lives in the political realm, whether as elected officials or staffers, have far and away the least knowledge of how the law affects people in the real world.
A number of years ago, George McGovern wrote an op-ed in the Wall Street Journal. He had gone into business after his political career, operating an inn a la Bob Newhart. Only then did he realize the crushing burdens that the regulatory state places upon the people who actually create our gross national product.
For knowledge of how the law affects real people, I would suggest people with experience practicing law at the retail level (not blue-chip law firms) or with experience in small to medium-sized businesses.
Comment by Kent Scheidegger — September 30, 2005 @ 5:58 pm
I have been thinking about an even broader and more diversified pool of nominees. Don’t limit it to lawyers.
As Akiba Covitz and Mark Tushnet argue, what you really want are people with common sense. I would add an ability to express themselves clearly, and an open mind. Each Justice has some legal aids, and they could fill in the non-lawyer Justices on accepted legal meaning of certain words and phrases, as well as perform the research on precedents. It’s my understanding that they generally already do the latter for the current Justices.
A President might nominate nationally recognized authors, playwrites, and poets, whose work demonstrates a keen understanding of the use of our English language, as well as human behavior and of what makes our country run. Or a nominee could be a prominent scientist, astronaut, General, Admiral, engineer, or mathematician, all of whom have made careers of solving problems subject to certain constraints.
The Constitution lists no qualification for Supreme Court Justices. (I may be wrong, but I don’t think it either has a requirement that they take one oath, much less the two that is the current practice.)
Comment by Old BT — September 30, 2005 @ 8:55 pm
Am I correct that by the terms of O’Connor’s resignation, Bush would not be able to use a recess appointment to replace her, as no vacancy will exist until her successor is confirmed?
ML responds: Yes, that is correct — as long as SOC does not retire, there is no vacancy to fill.
Comment by r.friedman — October 1, 2005 @ 8:18 pm