JURIST Guest Columnist William G. Ross of Cumberland School of Law, Samford University, says that while the US Court Supreme Court might benefit from the nomination of an elected public official, President Obama should not nominate such a person to serve as a Justice merely for the sake of diversifying the Court...
ome U.S. senators and commentators are encouraging President Barack Obama to nominate a U.S. Supreme Court Justice whose primary professional experience has been non-judicial, particularly a person who has served in an elected public office.
Advocates of a non-judicial nominee contend that Obama's Supreme Court nominee ought to have more "real world" experience than do present members of the Court, all of whom served as U.S. Court of Appeals judges, and none of whom have served in elected office. Until Samuel Alito joined the Court in 2006, the Court never had been composed solely of former circuit court judges or lacked any Justice who had held elected office. The present Court also is more "academic" than at most other times in its history, with three of its members (Stephen Breyer, Antonin Scalia, and Ruth Bader Ginsburg) having been law professors.
Shortly after David H. Souter announced his retirement, Senate Majority Leader Harry Reid expressed his preference for the appointment of someone other than a judge -- "people with some real-life experience...rather than people who walk around in these black robes all the time." Similarly, Senator Patrick Leahy of Vermont, a member of the Senate Judiciary Committee, remarked in the wake of Souter's announcement that he would "like to see more people from outside the judicial monastery, not just as a judge." And Vice President Joseph R. Biden, a former longtime member of the Senate Judiciary Committee, declared in 2007 during a debate among candidates for the Democratic presidential nomination that "We have enough professors on the bench. I want someone who ran for dog catcher."
Sandra Day O'Connor, who had served as majority leader of the Arizona state senate and an elected state trial judge, was the last Justice who had held an elected office. Before O'Connor, the last Justice who had served as an elected public official was her predecessor, Potter Stewart, who served two terms on the Cincinnati city council. The last nationally prominent career politician to serve on the Court was Earl Warren, who spent eleven years as governor of California before serving as chief justice from 1953 to 1969. For most of the Court's history, however, its members have included substantial numbers of prominent political figures, including former mayors, state officials, United States congressmen, and Cabinet members.
The frequent appointment of Court of Appeals judges also is a relatively new phenomenon. Before President Eisenhower appointed three circuit court judges (Stewart, John Harlan II, and Charles Evans Whittaker) to the Court during the 1950s, only two former circuit court judges (Wiley B. Rutledge and Willis Van Devanter) and three former federal district court judges (John H. Clarke, Edward T. Sanford, and Fred Vinson) had served on the Court during the twentieth century. Neither of President Kennedy's two nominees had been circuit court judges, and only one of President Johnson's three successful nominees (Thurgood Marshall) was a Court of Appeals judge. Four of President Nixon's six nominees (Warren Burger and Harry Blackmun and the unsuccessful nominees Clement Haynsworth and G. Harrold Carswell) were circuit court judges, and every subsequent confirmed nominee except for O'Connor has been appointed from the Court of Appeals.
Although President Clinton appears to have seriously considered the nomination of at least four prominent public officials -- Arizona Governor Bruce Babbitt; New York Governor Mario Cuomo; Senator George Mitchell of Maine; and former South Carolina Governor Richard Riley, who served as Clinton's secretary of education he eventually nominated Stephen Breyer and Ruth Bader Ginsburg, both circuit judges and former law professors.
Advocates of the appointment of a Justice who has served in public office correctly contend that this experience might make justices more sensitive to separation of powers issues. Similarly, service as a state official might make a Justice more aware of the importance of federalism. Many or most of the present Justices, however, have demonstrated a proper sensitivity toward both federalism and separation of powers. Moreover, there are professional experiences other than service in elected office that can provide Justices with "hands on" political experience. Several of the present Justices, for example, served early in their careers as attorneys in the U.S. Justice Department, where they had opportunities to closely observe the inner workings of the executive branch of the federal government.
There is no clear correlation between experience as an elected public official and distinction as a Supreme Court justice. Several of the Court's most distinguished members, including Chief Justices Warren, John Marshall, Salmon P. Chase, William Howard Taft, and Charles Evans Hughes, had substantial experience in elected office. On the other hand, many other notable justices, including Oliver Wendell Holmes, Jr. and Benjamin N. Cardozo, never were elected to public office. One of the greatest justices, Louis D. Brandeis, who spent his pre-Court career as an attorney in private practice, never served as a judge, professor, or public official.
The three U.S. senators whom President Truman nominated to the Court (Harold H. Burton, Sherman Minton, and Fred Vinson) receive low rankings from historians. Of the nine Justices nominated by President Franklin D. Roosevelt, the five who had not served in elected office (Felix Frankfurter, Wiley P. Rutledge, Robert H. Jackson, and William O. Douglas, and Harlan Fiske Stone) generally had more distinguished service on the Court than three of the four who had been elected officials. Hugo Black, who had been a U.S. senator, became an outstanding Justice, but historians are less kind toward Frank Murphy, who had been mayor of Detroit and governor of Michigan; James Byrnes, a member of the U.S. House of Representatives and U.S. Senate; and Stanley Reed, who had served in the Kentucky legislature. With the exception of Rutledge, however, the Roosevelt nominees who had not held elected office had nevertheless had significant political experience. Jackson and Stone had served as U.S. Attorney General, Douglas had been chair of the Securities and Exchange Commission, and Frankfurter had been a close advisor to Roosevelt.
One of the dangers of having prominent politicians on the Court is that they may harbor presidential aspirations. Prior to the middle of the twentieth century, when many Supreme Court Justices were national political figures, a remarkably large number of Justices conducted covert presidential campaigns, and a few even campaigned openly from the bench. In at least three-quarters of the presidential election years between 1832 and 1960, one or more Justices attempted to obtain a presidential or vice presidential nomination or were prominently mentioned as presidential or vice presidential candidates.
It is highly unlikely that any Justice today would openly campaign for the presidency because such a campaign would severely compromise contemporary expectations of judicial behavior and would violate Canon 5(a)(2) of the ABA Model Code of Judicial Conduct, which requires a judge to resign upon becoming a candidate for non-judicial office. Similarly, it would be difficult for any Justice today to conduct a covert campaign for the presidency because modern presidential bids are so protracted, and require herculean fund-raising efforts that would be impossible to conceal.
There is a very real danger, however, that a highly political Justice might try to use the Court as a platform for a future presidential bid. There is evidence that the presidential aspirations of several nineteenth century Justices, particularly Salmon P. Chase and Stephen J. Field, influenced those Justices' judicial decisions or at least affected the manner in which they wrote some of their opinions. Any perception that a Justice is calculating his votes or crafting his opinions for the purpose of currying favor with voters could significantly diminish public confidence in the integrity of the Court, which is the ultimate source of its power and influence.
Another danger of appointing a politician to the Court may arise from their connections to the nominating president. All four of Truman's nominees were personal friends, and three had been his colleagues in the U.S. Senate. At least three of these Justices receive low rankings from Court historians. Although some presidential friends have turned out to be distinguished Justices, a President's appointment of close political ally can encourage the erosion of separation of powers insofar as some presidents have remained in close contact with "their" Justices. The most egregious example was Abe Fortas, who offered political advice to Lyndon Johnson on a virtually daily basis and even is reported to have helped him write speeches and select Vietnam bombing targets. Since Johnson, no political buddy of a president has served on the Court. Harriet Miers's close association with George W. Bush as White House counsel helped sink her nomination in 2006.
If a prominent political figure were appointed to the Court, there also is a danger that the Justice would fail to make the adjustment from the robust world of politics to the more hermetic life of the Court. Such a justice might fail to recognize that public respect for the Court and the integrity of its rulings are jeopardized when a Justice makes extra-judicial comments about non-judicial issues. Although Justices can facilitate public understanding of the law through public comments on judicial issues, a Justice who is too accustomed to the limelight of the media might be tempted to comment indiscreetly about the inner workings of the Court or the Court's opinions, which usually should speak for themselves. Too many American institutions, public and private, have been trivialized by our culture of celebrity. The Court has largely avoided this virus, and the next Justice would do well to emulate Souter, who shunned unnecessary publicity and faithfully and quietly performed his duties without fanfare or hoopla. This is not much to ask of a professional politician, but it may be too much to expect.
Although many politicians are clamoring for fellow politicians to be appointed to the Court, several law professors have aptly pointed out the Court might benefit from the appointment of a state or federal trial judge. This would be particularly useful in the many cases involving criminal procedure that come before the Court. O'Connor's experience as a state trial judge clearly made her a more effective Justice. Hugo Black was derided at the time of his nomination in 1937 because his only judicial experience was as a judge of Birmingham's lowly night police court, but Black's tenure on this grassroots court is credited with helping to forge his sensitivity toward the needs of poor persons and African-Americans. During the past century, only a handful of Justices -- Clarke, William J. Brennan, Sanford, Vinson, and Whittaker have served as federal trial judges.
Military service is another life experience that might be useful to a Justice. It is unlikely, however, that the next Justice will be a veteran, particularly if the Justice is a woman, since so few elites have served in the military during recent decades. Most Justices in the past had military experience, but John Paul Stevens, who served three years in the Navy during the Second World War, is the only present Justice who has had full-time military service. Stevens probably will be the last military veteran for a long time to come.
Ultimately, however, professional experience may be less important than other more intangible qualities, particularly intellect, integrity, and an ability to work effectively with fellow Justices.
When Whittaker was nominated by Eisenhower in 1957, he was touted as uniquely well qualified and experienced because he would be the only Justice in history who served as both a federal trial judge and a Court of Appeals judge. Whittaker, however, is commonly (albeit somewhat unfairly) ranked a "failure" in polls of judicial reputation. After serving only five years, he resigned from the Court because the demands of the job threatened his physical and psychological health.
Although experience as a the U.S. Court of Appeals judge is the nearest possible approximation that one can have to service as a U.S. Supreme Court justice, even this experience does not fully prepare a person for service on the nation's highest court. Numerous Supreme Court Justices have emphasized that the Court is a world of its own that requires a long and difficult period of learning and adjustment, and that no previous "experience" can adequately prepare a neophyte Justice for his or her duties. Prior service as a clerk to a Supreme Court justice might help to ease the adjustment and provide useful training. Three present Justices Stevens, Breyer, and Roberts served as clerks to Justices, and Stevens in particular has spoken of how his clerkship with Rutledge taught him the importance of facts in adjudicating Supreme Court cases. But even prior service within the precincts of the Marble Palace is no substitute for the actual experience of sitting on the nation's highest bench.
In considering professional qualifications and experience, one also must distinguish between cause and effect. Is a nominee well qualified to serve on the Court because she has a certain type of experience or does she have that experience because she is the type of person who is well qualified to serve on the Court? For example, several of the most significant Justices during the past century, including Holmes, Brennan, and Cardozo, served as chief justices of state supreme courts. Clearly this experience was excellent training for their work on the U.S. Supreme Court; arguably, it was even more relevant than service on the U.S. Court of Appeals. But all three of these men were appointed to their state supreme courts at least in part because they were outstanding lawyers and legal thinkers, and the this trio probably would have rendered stellar service on the U.S. Supreme Court even without previous judicial experience.
Perhaps the greatest objection to drawing all Justices from the circuit courts is not that this circumscribes the experience that Justices bring to the Court but rather that it limits the pool of talent from which a President might choose to search for a Justice. Great Justices have come from a wide variety of professional backgrounds. Obama's pledge to appoint someone who has "empathy" with the problems of ordinary Americans suggests that he understands this and that he will not employ rigid criteria of professional background in searching for his nominee. Obama should consider the nomination of elected public officials, from whose perspective the Court could benefit. But he should not nominate an elected official merely for the sake of diversifying the Court, particularly if there is a significant danger that the politician will seek the presidency or conduct other political activities from the bench. William G. Ross is a professor at the Cumberland School of Law of Samford University. He has published extensively on constitutional history and the federal judicial appointments process. His website is williamgeorgeross.com.