Should Obama nominate a politician for the Supreme Court?
Even in these turbulent times, some things remain constant. For example, John Paul Stevens has retired from the Supreme Court and, just like always, many pundits are recommending that the president pick a politician for the opening. The reasons, too, are still the same: real-world experience, coalition-building among the justices, diversity, etc. Here's an example, picked not because it's particularly mistaken but because it's typical of the genre.
I've never found this terribly persuasive, since making appellate court rulings and making legislation or policy are -- or at least they are supposed to be -- very different functions. Especially in today's legalistic society, a Supreme Court capable of producing technically excellent doctrine, the kind that can command respect because of its legal reasoning rather than its policy appeal, would seem more important than ever. Obviously, the court is a political institution, which often cloaks policy-making in lawyerly mumbo-jumbo. I get that. But the mere fact that the justices feel constrained to make this bow to precedent, etc., sincere or not, is a worthy constraint and a source of legitimacy. A court full of politicians could come to be, and to be seen as, a political court. For all its flaws, most people do not see the current court that way.
In any case, there are very good reasons that presidents have increasingly turned to federal appeals court judges in recent years. The first is the sheer proliferation of appellate federal courts, which has vastly increased the "bench" of qualified would-be justices in comparison to past eras in U.S. history. The circuit courts of appeals were not even created until 1891; as of the end of World War II, there were only 59 authorized judgeships on the regional circuit courts, compared to 167 today.
The second is the "paper trail" problem. In contrast to past confirmation processes, today's are highly politicized affairs in which the opposition scrubs the nominee's every writing and utterance. Politicians who, by definition, talk, write and cast votes on just about any issue under the sun are especially vulnerable. (Yes, Sandra Day O'Connor had been a state legislator as well as a judge, and she was not viciously grilled on her voting record. But as an "historic" appointment -- the first woman nominee to the court -- she enjoyed a special advantage and was probably the exception that proves the rule.)
Appeals court judges get plenty of scrutiny, but with a crucial difference: they don't usually spend their time making political pronouncements, and their writings are generally limited to court opinions -- the most controversial of which can be explained as mere adherence to statutory language or Supreme Court precedent.
We shall see if a politician for the court is a conventional idea whose time has finally come. But it's not as if there aren't good reasons why it hasn't happened more often lately, and many of those reasons still apply.
| April 15, 2010; 10:38 AM ET
Categories: Lane | Tags: Charles Lane
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