More Politicians, Please

I don't think a Supreme Court appointment for Hillary Clinton would be a good idea -- she's 61 years old and since Supreme Court justices have lifetime tenure (which we should, in my view, scrap in favor of something like a non-renewable 12-year term), the wise president will find a nominee in her early forties. I don't, however, think Dana Goldstein's objection holds water:

I'd be concerned Hillary as a justice would begin a trend of even further politicizing the Court by opening it up to career politicians. Granted, the Court is already totally politicized. But at least now it has less the appearance of being that way.

This is a common misunderstanding, but justices have traditionally been politicians and not faux-apolitical technocrats. And that, I think, is how it should be. It's desirable for justices to have substantial legal experience, but lots of politicians have that. A justice shouldn't act just like he or she is a special kind of senator, but at the end of the day finding satisfactory resolutions for the questions the Court needs to deal with is a problem that requires statesmanship (or womanship as the case may be) not specialist legal knowledge.

Meanwhile, I don't genuinely think anyone is fooled by the current set of pretenses surrounding the Court. Normal people understand that a question like whether or not a constitutional guarantee of "the equal protection of the laws" prohibits state universities from using affirmative action admissions procedures isn't really a question where the more knowledgeable people are about the law the more they converge on the "correct" answer. All the prevailing process serves to do is to obscure what's at stake in nominations to the judiciary and in political debates about nominations and confirmations. One of the most important powers the president has is to appoint judges, and the public ought to hear more from the candidates about it than vague bromides about strict construction.

Comments

The real problem is that being a Supreme Court Justice has become a very specialized discipline. Most of the Supreme Court Justices have similar backgrounds and tend to spend time in the judge minor leagues (state courts, lower federal courts) before getting the big league call up. I would fear that a politician, even one with a legal background, would quickly find himself out if his league on the bench. He would not play the game well and would have to rely more heavily on clerks and other Justices.

Posted by blah | April 25, 2008 12:53 PM

This is a common misunderstanding, but justices have traditionally been politicians and not faux-apolitical technocrats.

I don't think this is a misunderstanding. They have not traditionally been politicians in modern times. The fact that they may have been in the distant past is neither here nor there. Having said that, there's no prior reason to think that either tradition is the better one. It needs to be argued on its merits.

Posted by Jim W | April 25, 2008 12:53 PM

William Howard Taft anyone? Geez, idjits...........

Posted by steve duncan | April 25, 2008 12:54 PM

It's true because William Howard Taft never held any office of significance before joining the court. In fact, I think the whole Taft family of Ohio produced nothing but greengrocers and haberdashers. These days, it seems, those who are ignorant of history are doomed to be pundits.

Posted by justawriter | April 25, 2008 12:54 PM

but at the end of the day finding satisfactory resolutions for the questions the Court needs to deal with is a problem that requires statesmanship (or womanship as the case may be) not specialist legal knowledge.

Then why bother having a court at all? We already have three institutions that use "statesmanship" to resolve questions. They are called the House of Representatives, the Senate, and the Chief Executive.

Posted by Josh E. | April 25, 2008 12:57 PM

As much as libertarains might hate it, the fact is that we have a whole assload more federal laws than we used to, and the ones we have are a lot more complicated. I don't think it's unreasonable to expect that Supreme Court justices actually be, you know, good judges.

Besides, even among politicians, does Hillary have "substantial legal experience"? She's a lawyer, yeah, but if I were to pick a senator I'd go for one who'd at least been a Harvard Law Review editor or something.

Posted by too many steves | April 25, 2008 1:01 PM

"The real problem is that being a Supreme Court Justice has become a very specialized discipline. Most of the Supreme Court Justices have similar backgrounds and tend to spend time in the judge minor leagues (state courts, lower federal courts) before getting the big league call up. I would fear that a politician, even one with a legal background, would quickly find himself out if his league on the bench. He would not play the game well and would have to rely more heavily on clerks and other Justices.

Posted by blah | April 25, 2008 12:53 PM"

Wasn't Sandra Day O'Connor a politician in Arizona before becoming a judge? Then again, she's kind of an in-between case. Then again, Marshall was never a judge either.

Posted by Reality Man | April 25, 2008 1:02 PM

Actually, the big news for devotees of inside baseball is how Nancy Pelosi just screwed Hillary.

By publicly coming out against the idea of an Obama-Hillary ticket. Although she left the idea open if Obama really WANTED Hillary as VP -- but you could tell she was struggling not to bust out laughing when she suggested it.
See http://news.yahoo.com/s/ap/20080425/ap_on_el_pr/pelosi_campaign

Which, in my opinion, will kill Hillary's desperate fund raising.
Because all those potential donors to Hillary are now facing the idea of getting bupkus in return. Hillary as VP might be worth something -- Hillary as mere junior Senator from NYC -- not so much.

Nancy Pelosi also ruled out a Convention fight. Superdelegates start getting their nuts twisted on June 6 --if not sooner.

Posted by Don Williams | April 25, 2008 1:03 PM

Anyway, if I devoted my career to the law and legal scholarship, I'd be pretty insulted at the idea that some jackass politician could do my job at the highest level. Remember, we're not talking about picking from a selection of randomly chosen citizens of average competence, intelligence and wisdom. We're talking about the United States Senate.

Posted by too many steves | April 25, 2008 1:04 PM

Ever heard of Earl freaking Warren (ex-governor of California), people? Jeez, do they teach history any more in schools?

Posted by Steve LaBonne | April 25, 2008 1:05 PM

Ever heard of Earl freaking Warren (ex-governor of California), people? Jeez, do they teach history any more in schools?

Beat me to the punch. Is there someone higher in the liberal/Democratic (though he was a Republican) Justice pantheon?

Posted by SomeCallMeTim | April 25, 2008 1:09 PM

Anyway, if I devoted my career to the law and legal scholarship, I'd be pretty insulted at the idea that some jackass politician could do my job at the highest level.

If I may be allowed to summarize Matt's original post, it's that all the important decisions made by the Supreme Court are entirely political ones anyway and we'd be better off just admitting it. Which seems close to contending that devoting one's career to the law and legal scholarship is naively idealistic.

Posted by James Gary | April 25, 2008 1:11 PM

I generally favor a Court with a mix of backgrounds, among which could (and probably should) be some former elected officials.

However, I would suggest a healthy gap in time between the last elected position and being on the Court, at least if that elected position was at the federal level. Basically, I think a good rule would be to require at least one presidential election between leaving office and being nominating.

Posted by DTM | April 25, 2008 1:12 PM

Why go all the way back to Taft?

How about Earl Warren-- Ike picked him straight from the Califormia governor's office and made him Chief Justice. Warren promtply led the court to its high water "activist" mark (other than Marshall's Marbury decision declaring the power of judicial review). Warren was not a judge, but understood the dynamics of getting the deal done.

Be careful what you wish for with a politician on the court-- I am sure Ike never thought Warren's court would do the things they did.

Posted by Beer Here | April 25, 2008 1:12 PM

Wasn't Sandra Day O'Connor a politician in Arizona before becoming a judge?

Yes. After spending time in private practice, being a mother, and working for the state AG's office, she served a few terms in the Arizona Senate. She then became a superior court judge and then a state appellate court judge.

Also, she is not considered to have been a very good Justice.

Then again, Marshall was never a judge either.

Yes he was. Marshall spent 20+ years arguing cases for the NAACP, including many cases before the Supreme Court. He then served on the Second Circuit court of appeals. He was also solicitor general before being appointed to the Supreme Court.

Posted by blah | April 25, 2008 1:15 PM

"Meanwhile, I don't genuinely think anyone is fooled by the current set of pretenses surrounding the Court. Normal people understand that a question like whether or not a constitutional guarantee of "the equal protection of the laws" prohibits state universities from using affirmative action admissions procedures isn't really a question where the more knowledgeable people are about the law the more they converge on the "correct" answer. All the prevailing process serves to do is to obscure what's at stake in nominations to the judiciary and in political debates about nominations and confirmations. One of the most important powers the president has is to appoint judges, and the public ought to hear more from the candidates about it than vague bromides about strict construction."

The Founders would be rolling in their graves to think that one of the most important powers the president has is to appoint judges.

But if you abandon the 'pretense' that judges are supposed to be above politics, why shouldn't we also abandon judicial review? The whole point of judicial review is to ensure that the Constitution is being used to restrict the actions of the political branches. If the Supreme Court is just another political branch it isn't capable of performing that function and therefore shouldn't be pretending to perform that function.

Posted by Sebastian | April 25, 2008 1:16 PM

I wouldn't object to having politicians on the Court in principle. But they'd have to be politicians who have maintained an aura of dignity. The Court really only has as much power as the other braches are willing to acknowledge. So maintaining gravitas and respectability really is important.

Granted, that took a hit when Justice Thomas joined the Court. But the Clintons have a way of turning every insitution they control into an embarrassing spectacle, a shameful circus. It would not be helpful for the rule of law--which is already sounding quaint--for them to get their hands on the Supreme Court.

Posted by jbd | April 25, 2008 1:16 PM

yeah, rather than having the supreme court be, you know, a court, dealing with legal issues in a legal way, let's just make it into another wholly political forum, but with lifetime tenure and no elections. sounds awesome, really democratic, etc.

and for those who think the court's really just politics, you're just embarassing yourself by showing your ignorance of what goes on in courts, how they work, etc.

Posted by dj superflat | April 25, 2008 1:19 PM

Actually, I think the 50 state legislatures should have the sole power to nominate, appoint(majority vote) and impeach/remove the Supreme Court Judges. That might restore some meaning to the Ninth and Tenth Amendments.

Posted by Don Williams | April 25, 2008 1:22 PM

Good post. I think the justices are often bewildered at how their decisions play in the public realm; not that that is the final yardstick, but the court shouldn't be in a total vacuum about the real-world effects it is likely to have. Sandra Day O'Connor was a helpful influence in this area (she did hold elective office in Arizona).

Posted by Dix Hill | April 25, 2008 1:23 PM

If I may be allowed to summarize Matt's original post, it's that all the important decisions made by the Supreme Court are entirely political ones anyway and we'd be better off just admitting it.

I thought that might be it, but also thought Matt was too smart to subscribe to this crude legal realism.

Posted by Josh E. | April 25, 2008 1:28 PM

In addition to Warren, prominent Democratic appointees of the mid-late 20th century how made their reputations off the bench:

William O. Douglas - law professor, then head of the SEC prior to his appointment to the Court;

Hugo Black - Senator from Alabama prior to his appointment;

Arthur Goldberg - attorney for the CIO and then Sec. of Labor prior to his appointment.

These men each were associated with policy positions, not mere technical competence in discharging duties of the Bench.

Thurgood Marshall was appointed following a short stint on the Second Circuit, but his reputation from Brown vs. Board of Ed. and the other NAACP LDF work he spearheaded was what got him the appointment.

If we are going the technocrat route, I would love to see Stuart Rabner (Chief Justice of the NJ Supreme Court) appointed. But, I would rather that the second place Democratic candidate get the slot (if he/she is not the V.P.).

Posted by Ephus | April 25, 2008 1:29 PM

Actually, I think the 50 state legislatures should have the sole power to nominate, appoint(majority vote) and impeach/remove the Supreme Court Judges. That might restore some meaning to the Ninth and Tenth Amendments.

Other than the nomination bit, that's not too different than what happens currently since it's the Senate that does the confirming. Damn non-proportionality.

Posted by daveNYC | April 25, 2008 1:31 PM

I thought that might be it, but also thought Matt was too smart to subscribe to this crude legal realism.

As also in yesterday's "Credit Where Due" post on the subject of HRC and the gas tax, Matt's basically liberal outlook is often seasoned by flirtations with what he probably considers Realpolitik and many commenters probably consider "GOP S.O.P."

Whether Matt will eventually realize that this kind of Machiavellian approach to politics is a major contributor to the present-day state or America, or whether, Anakin Skywalker-like, he will embrace it fully and end up a committed conservative, remains an open question.

Posted by James Gary | April 25, 2008 1:44 PM

Charles Evans Hughes was an associate Justice, left to _run for president_ in 1916 (lost to Wilson). Then ran a law practice where he would tell you what the court would say if a case reached them (and so save you the cost and time of taking a case to the court) until he became Chief Justice.

Posted by David Margolies | April 25, 2008 1:45 PM

Marshall spent 20+ years arguing cases for the NAACP, including many cases before the Supreme Court. He then served on the Second Circuit court of appeals. He was also solicitor general before being appointed to the Supreme Court.

True, but I suspect the previous commentor was talking about John Marshall, who was a practicing lawyer, a Congressman, a diplomat, and briefly Secretary of State, but who was never a judge before being appointed Chief Justice.

John has a rather bigger reputation than Thurgood, although Thurgood was undeniably a great man.

Posted by rea | April 25, 2008 1:45 PM

The supreme court is not merely an affirmative-action/death-penalty/abortion tribunal. Lots and lots of decisions require real legal knowledge about commercial disputes, tort litigation, and other sorts of law where the non-lawyer just hasn't a clue and a really really good lawyer is very useful. Yes, there are cases where Hillary Clinton or even Matt Yglesias would be fine on the court, but there are lots of cases where both would be incompetent (or too reliant on 27 yr old assistants) and a faux-apolitical technocrat would be much better.

Posted by otto | April 25, 2008 1:52 PM

Yes, there are cases where Hillary Clinton or even Matt Yglesias would be fine on the court, but there are lots of cases where both would be incompetent (or too reliant on 27 yr old assistants) and a faux-apolitical technocrat would be much better.

Yeah, that's insane. Lots of reasons--age, Rehnquist's drug addiction, etc.--to think 27 year old clerks are minding the store already. IIRC, the Republicans are reputed to have brought in minders for Alito because they were worried he might drift left once he got the appointment.

Posted by SomeCallMeTim | April 25, 2008 1:59 PM

Lots and lots of decisions require real legal knowledge about commercial disputes, tort litigation, and other sorts of law where the non-lawyer just hasn't a clue and a really really good lawyer is very useful.

True. Fortunately, plans are already underway to save taxpayer money by outsourcing those decisions to a company in India.

Posted by James Gary | April 25, 2008 2:04 PM

SCMT: You're not wrong. Age, sickness, and assistants are problems already, I agree, but young enough, healthy enough non-/weak-lawyers appointed to SCOTUS would be more reliant on assistants than young enough, healthy enough uber-competent lawyers, because, simply put, they don't know enough law. At the margin, there's a difference in the ability to competently handle a very wide range of issues outside the usual constitutional hot buttons.

Posted by otto | April 25, 2008 2:07 PM

There was a politician not long ago who would have been a stellar Supreme Court Justice. He wanted the job and would have had no problem with Senate confirmation. Unfortunately, he was talked out of it by the First Lady at the time who wanted him to work on a special project of hers that would "change America forever."

That'd be George Mitchell, the issue was national health care, and the First Lady was... oh crap, you guessed.

Posted by Larry McD | April 25, 2008 2:15 PM

Lots and lots of decisions require real legal knowledge about commercial disputes, tort litigation, and other sorts of law where the non-lawyer just hasn't a clue and a really really good lawyer is very useful.

You know, nobody knows all this stuff or even most of it. Even the best lawyers tend, by the time they have enough experience to be considered for the court, to have specialized in one area of law and to have only a general grasp of others. There are certainly a lot of cases in which none of the members of the Court has expertise, and that will always be true. But judgment is worth a lot of expertise in the end, and having people who have been in public political life on the Court probably tends to promote people who have good judgment.

Posted by David in NY | April 25, 2008 2:16 PM

Of justices appointed in the 20th century, the following were at some point elected officials, or candidates for elected office:

1. 1910 - Charles Evans Hughes (Governor of New York)
2. 1910 - Edward D. White (as Chief Justice - already an associate justice, but previously a senator from Louisiana)
3. 1911 - Joseph R. Lamar (Georgia State Legislator, but later a judge)
4. 1912 - Mahlon Pitney (Congressman from New Jersey)
5. 1916 - John H. Clarke (unsuccessful senatorial candidate in Ohio)
6. 1921 - William Howard Taft (President of the United States)
7. 1922 - George Sutherland (Congressman and Senator from Utah)
8. 1937 - Hugo L. Black (Senator from Alabama)
9. 1941 - James F. Byrnes (Senator from South Carolina)
10. 1945 - Harold H. Burton (Senator from Ohio)
11. 1946 - Fred Vinson (Congressman from Kentucky))
12. 1949 - Sherman Minton (Senator from Indiana)
13. 1953 - Earl Warren (Governor of California, Dewey's running mate in 1948)
14. 1981 - Sandra Day O'Connor (Arizona state legislator)

Beyond that, a great number had political roles of some sort -

1. 1903 - William R. Day (McKinley's Secretary of State)
2. 1906 - William H. Moody (TR's Secretary of the Navy and Attorney General)
3. 1911 - Willis Van Devanter (McKinley's Assistant Attorney General)
4. 1914 - James Clark McReynolds (Assistant Attorney General under TR, Attorney General under Wilson)
5. 1923 - Edward Terry Sanford (Assistant Attorney General under TR)
6. 1925 - Harlan F. Stone (Attorney General for Coolidge)
7. 1938 - Stanley F. Reed (Solicitor General)
8. 1939 - William O. Douglas (Chairman of the SEC)
9. 1940 - Frank Murphy (FDR's Attorney General)
10. 1941 - Robert H. Jackson (FDR's Attorney General)
11. 1949 - Tom Clark (Truman's Attorney General)
12. 1962 - Byron R. White (Kennedy's Deputy Attorney General)
13. 1962 - Arthur J. Goldberg (Kennedy's Secretary of Labor)
14. 1969 - Warren Burger (Assistant Attorney General under Eisenhower)
15. 1972 - William Rehnquist (Assistant Attorney General under Nixon)
16. 1990 - David Souter (Attorney General of New Hampshire)
17. 1991 - Clarence Thomas (Reagan's Assistant Secretary of Education and Reagan and Bush's Chairman of the EEOC)
18. 2005 - John Roberts (Deputy White House Counsel)
19. 2006 - Samuel Alito (U.S. Attorney for New Jersey under Reagan and Bush, previously an assistant to Attorney General Ed Meese)

Posted by John | April 25, 2008 2:18 PM

A Supreme Court appointment for Hillary Clinton? How much does anyone really know about Hillary? America knows exactly squat about Hillary. Lets see, more than half of the electorate would never vote for her. Grasping, unethical, dishonest, someone with an agenda comes to mind. Surrounds herself with wonderful people too. I know, lets appoint her to the Supreme Court. Oh yeah, that'll work: http://theseedsof9-11.com

99% percent of law is common sense, the remainder consists of keeping your fingernails clean.

Posted by Peggy McGilligan | April 25, 2008 2:18 PM

The real problem is that being a Supreme Court Justice has become a very specialized discipline. Most of the Supreme Court Justices have similar backgrounds

The real problem is not enough Justices. There aren't enough of them to get the work done. There aren't enough to ensure diverse areas of expertise. There aren't enough to resist outside pressures. And there are so few, new appointments to the Court are too politicized because they are too important. We should increase the size of the Court to at least twenty-five Justices, probably something like one hundred and five.

Posted by Gary Sugar | April 25, 2008 2:28 PM

Earl Warren was a district attorney and an attorney general before becoming governor. Perhaps he is not remembered more as a political actor because he was less prolific. He is not considered a great jurist like the scholarly Brennan, whom Warren charged with writing many of the landmark decisions for the court (although Warren did author Brown v. Board).

You need actual jurists on the court, although having some good politicians on there is fine. but the point about the judiciary, especially the SCOTUS, having a political function can be misleading. Jurists do have a unique function that is not captured by making the now-banal point that judging is a political activity. There are significant doctrinal and norm-based impediments to the judiciary becoming another legislative branch, embodied in doctrines like standing, justiciability, political question, etc., and in norms like judicial restraint.

These are not trivial structures. There are powerful reasons to have a judiciary that has something other than a purely instrumental outlook -- for instance, the President can get away with snubbing Congress by building tribunals in violation of statute, but defying the court's judgment in Hamdan is politically unthinkable.

Posted by StJoe | April 25, 2008 2:36 PM

Earl Warren was a district attorney and an attorney general before becoming governor. Perhaps he is remembered more as a political actor because he was less prolific. He is not considered a great jurist like the scholarly Brennan, whom Warren charged with writing many of the landmark decisions for the court (although Warren did author Brown v. Board).

You need actual jurists on the court, although having some good politicians on there is fine. but the point about the judiciary, especially the SCOTUS, having a political function can be misleading. Jurists do have a unique function that is not captured by making the now-banal point that judging is a political activity. There are significant doctrinal and norm-based impediments to the judiciary becoming another legislative branch, embodied in doctrines like standing, justiciability, political question, etc., and in norms like judicial restraint.

These are not trivial structures. There are powerful reasons to have a judiciary that has something other than a purely instrumental outlook -- for instance, the President can get away with snubbing Congress by building tribunals in violation of statute, but defying the court's judgment in Hamdan is politically unthinkable.

Posted by StJoe | April 25, 2008 2:38 PM

I have no problem with pols on the court, but not ones that push anti-flag burning bills and appear to support mostly unchecked executive power.

Posted by justinb | April 25, 2008 2:40 PM

America knows exactly squat about Hillary.

Then of every other politician in the country*, we measure what we know of them in negative numbers.

*except Bubba

Posted by Jeffrey Davis | April 25, 2008 2:41 PM

John's list omits Justice Breyer, who was counsel to the Senate Judiciary Committee.

I think the problem is not that we've moved away from appointing vote-seeking politicians to the court (O'Connor being the only one since 1953), but that we've moved away from appointing justices with a non-executive-branch perspective. To the extent that nominees in the past half-century have had non-judging government experience, it's always been as part of the executive branch. What Breyer has brought to the Court is a belief that the legislative branch has an important constitutional role to play is making law, that it can and must be effective in that role, and that we should respect Congress and care about setting up federal law in a way that Congress will work effectively.

The idea that Bill Clinton had that Mario Cuomo or Dick Riley would bring something to the Supreme Court that others could not (because they were governors) is, I think, wrongheaded. Politically speaking, having a governor on the Court could be good because it might superficially look like the Court had some more democratic legitimacy. But what would Cuomo really bring to the table in terms of constitutional analysis and federal statutory interpretation that a DOJ-lawyer-turned-federal-judge couldn't?

The answer might be to put members of Congress on the Court, like we used to prior to 1950. But the problem is that there are few elected politicians who are smart enough to do the job (Jeff Toobin's book reports that Dick Riley turned down Clinton's offer on the spot, telling Clinton that he knew he wasn't qualified), and few who have Breyer's respect for Congress and for the possibility that it might play a vital and effective part in our democracy. People talk about a GOP president appointing Sen. John Cornyn (a former Texas state court judge, I think) to the Court. Really? A guy who thinks the job of the Senate is to be President Bush's amen chorus? How is that any better than a DOJ career lawyer like Alito? Both take their marching orders from the White House; both are concerned primarily about the prerogatives of the executive -- convicting criminal defendants, allowing administrative agencies to do whatever the White House wants them to do, and centralizing all power over the conduct of war and spying.

Posted by Dave | April 25, 2008 3:09 PM

It seems like the age issue helps prevent us from getting any legislators - they're all going to be young as fuck from now on, which excludes most senators. The youngest members of the Senate Judiciary Committee, for instance, are Sheldon Whitehouse, who is 53, and Russ Feingold, who is 55.

Posted by John | April 25, 2008 3:24 PM

It might be nice to have a Constitutional lawyer, with political experience, on the Court. Which wouldn't be Senator Clinton, of course. But I could see, a decade or so down the road, ex-President Obama following in Taft's footsteps.

Posted by wj | April 25, 2008 9:01 PM

Judges and politicians are both creatures of and protectors of the state.

I don't see a hell of a lot of difference between them.

A judge just acquitted the three cops who shot fifty bullets into a guy. The defendants wanted a trial by judge, not jury. Some idiots said that was risky.

Pardon me while I laugh.

What the Supreme Court needs are judges who understand HISTORY - because their primary function is to interpret the Constitution and the history of previous judicial decisions.

Putting a politician on the bench is just stupid. That it's been done numerous times merely demonstrates how stupid the electorate is.

Posted by Richard Steven Hack | April 25, 2008 11:54 PM

Nice work with the comprehensive list, John. It seems as if there was clearly a shift toward technocracy on the court after the 50s. I can think of two possible reasons:

1) As several people have mentioned, the big post-FDR government was more complicated and required more expertise.

2) There was a national backlash against the "crude legal realism" (as Josh E. put it) of the Warren Court.

Anybody want to take a stab at which of those might be more true, or add another?

Posted by Michael A. | April 27, 2008 5:37 AM