Academic Round-Up

The theme of this week’s round-up is judicial appointments, in large part because I was sent an interesting article today that appears in the newest issue of Judicature (thanks to Michael Solimine for the pointer).

Terri Peretti (Santa Clara Department of Political Science) has written an article entitled “Where Have All the Politicians Gone? Recruiting for the Modern Supreme Court,” see here. Relying on a pretty exhaustive review of both the political science and legal literatures on judicial appointments, Professor Peretti more or less argues that Presidents should give greater consideration to prior political experience in making Supreme Court appointments. She correctly points to many periods in the nation’s history, particularly in the early nineteenth century, where more than half of the Justices on the Court had directly faced the electorate as a political candidate. I think her larger point is quite important: we have a very homogeneous group of Justices that previously served as federal appellate judges and have very similar educational backgrounds. In fact, it is perhaps one of the most homogeneous groups in the nation’s history without a single Justice appointed directly from private practice or from other positions in the legislative or executive branches. But I am not persuaded, despite her various arguments and her marshaling of an impressive list of scholarly sources, that the answer is more politicians on the Supreme Court. Indeed, some of her examples of areas where she believes that the Court can do better or has done better with politicians on the Court are not particularly compelling. That said, I think the compelling larger point echoed in a 2003 paper by Lee Epstein, Jack Knight, and Andrew Martin is that a more heterogeneous group of Justices might do a better job in many areas of the law.

Along similar lines, Adrian Vermeule (Harvard Law School), whose work I particularly enjoy, published a paper in Stanford Law Review last year, see here, considering whether lay Justices would, among other things, decrease decisional errors in cases that require some nonlegal knowledge in reaching a correct decision. Such cases include, according to Professor Vermeule, those “in which law draws upon specialized knowledge that is not itself legal, such as economic, medical or military expertise” and those “in which law draws upon knowledge that is neither specialized nor legal, such as knowledge of ‘the mystery of human life’ or ‘evolving standards of decency.'” Of course, Vermeule concedes that lay Justices would do worse in cases where specialized legal knowledge is at issue, but that a Court made up of both types of Justices would lower the decisional error by the Court by doing better in those cases where nonlegal knowledge is essential. Although I am not persuaded that the answer lies in appointing lay Justices either (though perhaps he makes a good point about dual-competent Justices), Vermeule’s paper is an interesting read. Vermeule’s article was discussed at some length by Peretti.

Finally, for those interested in the history of presidential appointment of Supreme Court Justices, I highly recommend a recent book by Professor Christine Nemacheck (William & Mary Political Science Department) entitled “Strategic Selection: Presidential Nomination of Supreme Court Justices from Herbert Hoover through George W. Bush,” see here. This is an outstanding book, a quick read, and one of its most outstanding features is the comprehensiveness of Professor Nemacheck’s research in relevant presidential papers. Indeed, her appendix catalogs “the short lists” for every Supreme Court nomination since Charles Evan Hughes’ appointment as Chief Justice. In particular, she reproduces President Ford’s handwritten notes on the “short list” that eventually produced the appointment of Justice John Paul Stevens. This is fascinating stuff and a well-executed book.