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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)