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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.

By Charles Lane  | April 15, 2010; 10:38 AM ET
Categories:  Lane  | Tags:  Charles Lane  
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Comments

Mr Lane, et.al.,

may i suggest Joe Liebermann (Independent of CT)? -he would, as an Independent be an EXCELLENT CHOICE.

Joe would, imVho, "sail through" the approval process with little trouble.

yours, TN46

Posted by: texasnative46 | April 15, 2010 12:32 PM | Report abuse

There is no constitutional requirement that a Supreme Court nominee be a judge or lawyer, or have any kind of legal background. I'd like to see a philosopher or scientist nominated.

Posted by: gce1356 | April 15, 2010 12:53 PM | Report abuse

Definitely NOT Lieberman; he would not only never sail through, he would be absolutely rejected by Democrats, who control the Senate. Besides, I don't think Obama likes him; Holy Joe is too self-righteous. So hang it up. In today's environment, no office-holding politician will be nominated. A retired one, maybe, but not a current one. And I think Obama wants someone younger anyway. So expect an appeals court judge younger than 60.

Posted by: 1toughlady | April 15, 2010 12:57 PM | Report abuse

Al Gore would be an excellant choice for the Supreme Court

Posted by: mnbvcx | April 15, 2010 1:01 PM | Report abuse

Al Gore would be an excellant choice for the Supreme Court

Posted by: mnbvcx | April 15, 2010 1:02 PM | Report abuse

1toughlady,

imVho, the FACT that BHO dislikes him is a damned good reason for Joe to be the nominee.

fwiw, i suspect that ANY nominee by BHO will be filibuistered, well until after the new (GOP-controlled) Senate meets in Jan 2011.

BHO is a BAD JOKE & will be soundly DEFEATED in 2012 & will forever be known as a prime example of what a POTUS should NOT be.
(frankly, i doubt that BHO will be the nominee of the DIMocRATS party in 2012, given the BLOODBATH that the Nov election of 2010 will be for his party.)

yours, TN46

Posted by: texasnative46 | April 15, 2010 1:06 PM | Report abuse

mnbvcx,

"AL GORE?" - don't make me laugh.

"albore" is a LIAR, a DUNCE, a FRAUD & a sanctamonious FOOL. - he is as likely as i am to ever wear a black robe at the SCOTUS.

frankly, given his record of DISHONESTY & "income tax problems", he'll be LUCKY not to become a "prisoner in an orange jumpsuit".

yours, TN46

Posted by: texasnative46 | April 15, 2010 1:12 PM | Report abuse

TN46 has a point, though not the one I think he was trying to make. The Republicans are going to stonewall any choice Obama makes, regardless of their qualifications (or lack thereof) for the job. A politician will not be exempt from this rule, although I assume that the media will play up the controversy if it happens.
Truthfully, both parties have politicized the nomination process, and are reaping the rewards of doing so. Not so long ago, it was a given that a president, by being elected, had a mandate to make policy for the next four years. While the Senate could (and did) make it clear when they had objections to a nominee, the objections were normally about quality (i.e. were they competent to do the job) not ideology (do they agree with [insert Senator] on [insert policy point]).
That being said, Obama has two options. He can 'damn the torpedoes, full speed ahead', and nominate someone who agrees with him across the board, accept the screaming and moaning of the opposition, and get on with governing. This has a certain appeal, including making us all realize that, regardless of the hysteronics, the country does not collapse because your political opponents come into power. However, I think the cost to Obama and the Democrats in the short term will be out of proportion to the gain.
Obama's other (much more likely, in my opinion) option is to pick a moderate, centrist, professional (and boring) jurist, and then shake his head in regret while the Republicans throw a hissy fit. Then he can say to the public, "Look at how qualified this judge is? Why is the GOP so disinterested in governing?" It's what he did with Sotomayor (heck, it's what Bush did with Roberts and Alito), and it worked pretty well. Really, I think Obama is actually more comfortable with a centrist court, anyway - it reflects his own personal beliefs about the law and the Supreme Court far better then an activist Liberal would do so.

That's my two cents. Have fun with it.

Posted by: haldon12 | April 15, 2010 1:56 PM | Report abuse

Here's leap. In the interest of diversity on the court, nominate a regular person from the real world of common sense.

Lawyers and politicians are already well represented on the supreme court. Suspect and semi-suspect classifications are represented. what is lacking is representation of ordinary people with real world experience, figuring out real problems.

So how about nominating an electrician? Perhaps a nurse, firefighter, or welder?
Auto mechanic, cop, computer programmer?

Posted by: risejugger | April 15, 2010 2:35 PM | Report abuse

People that think that a non-lawyer should be on the Supreme Court are idiots.

Supreme Court justices are probably the most important and influential members of the legal community in the country. Their job requires extraordinary understanding of extremely complex legal issues. Asking a non-lawyer to be on the Supreme Court is like asking a non-doctor to perform open heart surgery...

Posted by: TheNathan | April 15, 2010 3:51 PM | Report abuse

Whoever Obama nominates will be the worst nominee ever, and if approved, will single-handedly destroy Western Civilization, I just know it! All Fox-watchers can use their time in other ways now, since I have neatly summarized the upcoming coverage in one sentence. You're welcome.

Posted by: vfazio | April 15, 2010 5:31 PM | Report abuse

This discussion comes up every time there is a Supreme Court vacancy, and it is always a silly discussion. Being a federal judge is a very difficult job, and being a Supreme Court justice is even harder. Read one of the Court's opinions -- all of it, not just the summary. Unless you are a lawyer, you won't understand at least half of it. Judges and justices need to know what they're reading and what they're talking about (unlike Congress, which just speaks in platitudes and votes on bills that have never been read). That's because being an experienced jurist matters.

If you needed surgery, you wouldn't say, "I think I want a politician." And interpreting the law is not -- not -- politics.

Posted by: CaughtInAMosh | April 15, 2010 6:44 PM | Report abuse

risejugger has the right idea. Anyone who thinks that being a Justice of the Supreme Court requires extraordinary understanding of extremely complex legal issues hasn't followed the legal opinions of the Pinhead from Pinpoint, the "ahum" Honorable Clarence Thomas.

Having known quite a few lawyers, related to several in fact including a law professor, I can definitely say they have less common sense than most of the other people I know. For the most part, they are so hung up on the minutia of a legal argument, usually just to show that they've actually read it or at least heard of it, that they lose sight of the broader implications of their decisions.

Now I know that some will say that is exactly the point, to make a razor thin decision and leave any problems that may arise to future lawsuits and future decisions.

I say hire the nurse or welder and leave a few lawyers OFF the bench.

Posted by: rcubedkc | April 15, 2010 6:44 PM | Report abuse

People that think that a non-lawyer should be on the Supreme Court are idiots.

Supreme Court justices are probably the most important and influential members of the legal community in the country. Their job requires extraordinary understanding of extremely complex legal issues. Asking a non-lawyer to be on the Supreme Court is like asking a non-doctor to perform open heart surgery...

******************************************

Amen, brother. If you disagree with this, you don't know what you're talking about.

Posted by: CaughtInAMosh | April 15, 2010 7:01 PM | Report abuse

Having known quite a few lawyers, related to several in fact including a law professor, I can definitely say they have less common sense than most of the other people I know. For the most part, they are so hung up on the minutia of a legal argument, usually just to show that they've actually read it or at least heard of it, that they lose sight of the broader implications of their decisions.

I say hire the nurse or welder and leave a few lawyers OFF the bench.

Posted by: rcubedkc | April 15, 2010 6:44 PM | Report abuse

*******************************************

Maybe you should drive a car that was welded together by a lawyer.

Let me give you a little insight on what the lawyer's perspective is when discussing any given issue with you: "Oh my God, how long do I have to humor this person who doesn't even understand what the issue here really is?"

However, the odds are indeed good that your law-professor relative has very little common sense.

Posted by: CaughtInAMosh | April 15, 2010 7:08 PM | Report abuse

The Supreme Court case that won the 2000 election for George Bush and their most recent "Citizens United" decision empirically proved that the Supreme Court Justices are just as political as any other politician. So, what difference would it make if President Obama nominated a U.S. Senator, a Union Leader, or a campaign worker....

Posted by: dozas | April 15, 2010 7:57 PM | Report abuse

CaughtinAMosh, "However, the odds are indeed good that your law-professor relative has very little common sense."

You couldn't give me insight into anything.

You must be a lawyer as you show no common sense either.

Posted by: rcubedkc | April 15, 2010 8:04 PM | Report abuse

Who proposed the name of any politician for the nomination? Hillary Clinton's name was mentioned, and the White House quickly denied it. Not that such denials should be considered as final.

The premise of the article is deceiving. In "a" short list of ten candidates, there were the names of Granholm and Napolitano - both ritual, obligatory inclusions. Neither have any judicial experience; not that it is a requirement, just as even being a lawyer is not required.

The premise seems to be a straw-man argument, set up to be easily demolished. If there exists a spate of such nominations in the recent past, that would lend it some credence. When was the last time a politicial was nominated (let alone confirmed) for the Supreme Court?

Pick a topic of which you know something about.

Posted by: pKrishna43 | April 15, 2010 8:56 PM | Report abuse

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