What kind of person would you like to see ascend to the Supreme Court to replace Justice Souter? Joe Garofoli of the San Francisco Chronicle has assembled a list of potential nominees and described their attributes in this article published earlier today. One of the questions that President Obama and the Senate must address in nominating and confirming the next member of the Supreme Court is whether the next justice should be someone from the judiciary or someone who has distinguished himself or herself in another field altogether. For the last 35 years almost all of the persons appointed to the Court have been judges. Is it time to appoint someone who has distinguished himself or herself in some other aspect of public life?
Almost all of the persons appointed to the Supreme Court by Presidents Ford, Carter, Reagan, Bush I, Clinton, and Bush II were judges, the principal exception being Chief Justice William Rehnquist, who was a Justice Department lawyer at the time of his appointment. The current Chief Justice, John Roberts, served only two years as a judge before being nominated to the Supreme Court; before that he had been one of the leading legal practicioners appearing regularly before the Supreme Court. The justice from the last few decades who had the most distinguished career in public life outside the practice of law was Sandra Day O'Connor, who had been Majority Leader of the Arizona Senate before her appointment to the Arizona Court of Appeals, where she worked for two years before President Reagan nominated her to the Supreme Court. Prior to that time non-judicial appointees were common. Chief Justice Earl Warren, appointed by President Eisenhower, had been Governor of California, and seven of Franklin Roosevelt's eight appointees came from government and academia, not the judiciary. He appointed two Senators, two Attorney Generals, two who had been or would be Governors, one who was Secretary of State, one who was Chair of the Securities and Exchange Commission, and one who had been Chair of the War Labor Policies Board. They were, on the whole, influential professionals who had risen to prominence in their respective spheres.
On the one hand, it makes sense to appoint judges to a court! The Supreme Court has the responsibility for interpreting and applying federal law. The justices of the Supreme Court ensure that federal statutes and regulations are enforced uniformly across the United States; when Congress or administrative agencies enact or issue law it will be enforced in ways that are predictable, stable, and just. If the Supreme Court did not have to interpret the Constitution then I can think of no reason to look outside the judiciary for candidates to that high office.
But the Court does have responsibility to interpret the Constitution, and as much as textualists and originalists might wish for clarity and predictability, the Constitution is inherently – in my opinion deliberately – imprecise. The Constitution of the United States lays the foundation for our country, but it does not determine every detail of the edifice. The most important provisions of the Constitution create a democracy, separate the powers of the federal government among different branches and among different levels, and establish our fundamental rights – liberty, equality, and fairness. This blueprint for the national government is reflected in every aspect of American life. The principles of the Constitution apply equally to the states and local government, and through the enactment of laws that mirror the Constitution we now require our private institutions and even individuals to abide by these principles as well. We must be tolerant of other people's differences. We must not be prejudiced. We must treat others fairly. We must not exercise power arbitrarily. The Constitution has come to embody the fundamental political and social principles of American society.
We understand these principles in different ways. The words "equal protection" and "due process" and "privileges and immunities of national citizenship" legitimately mean different things to different people. For this reason I would welcome judicial nominations reflecting different components of American society. Leaders in various walks of life, people whose experiences would add diversity to what should be the rich tapestry of the Supreme Court, should be charged with articulating what we stand for – what it means to be an American.
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"We must be tolerant of other people's differences. We must not be prejudiced."
These are good qualities and we can't infringe on others' rights, but this part is pure hogwash and that kind of thinking leads to tyranny.
I am not sure which would be the more relevant trait in selecting a SCOTUS Judge, but I do know that if we had term limits on these people, it may not matter as much. I am all for 8 year limits on SCOTUS and Congress.
If those are the only choices available, I think the US needs a pragmatist on the Supreme Court. Politicians and academics are generally too rooted in their core viewpoints and practices to make objective decisions based on viewpoints different from their own. Yes, Federal Judges do have a history of tendencies with their decisions. I don't think any of them would break with their habits either. A constant supporter of the underdog may always put the cries of the few ahead of the best interests of the majority. Since no one type is clearly a best choice, I offer (only half jokingly) an alternative. How about someone with a Vulcan sense for logical thinking? An emotionless Justice would make a good tie breaking vote.
Not bad, but since there aren't any of those, how about Bill Bellichek?
2 years ago, prior to law school, I would have shouted, "Get the practical experience guy in there!" Of course, I also used to believe that career politician = bad thing.
So, I'd like to answer your question with a question: why is it that anyone would want the highest legal position in the country to be held by someone with minimal experience? The Supreme Court makes the ultimate decisions on the law, right? So . . . let's put in a football player? Granted, I've set up a bit of a straw man. My point is: why WOULDN'T we want an experienced judge?
If I want brain surgery, I don't want the guy who just got out of med school but has lots of "practical experience" with drills. I want the surgeon with a long history of experience, but plenty of skull-cutting years left in her.
But I guess law school just corrupted my thinking, didn't it? Sigh.
Another potentially great lawyer bites the dust.
It would be a different situation if there were only one justice/surgeon doing the job. Since the high court is essentially a committee that decides cases by simple majority vote, my thought was that a more open-minded thinker would provide insights that could be lacking in the left and right leaning justices. I too would want the most experienced if there were only to be one justice making all the decisions. Career politicians are, IMHO, a bad thing unless they have shown competency in a legitimate 'trade' prior to answering the call of public service.