Who should Obama nominate to replace David Souter on the Supreme Court? In an earlier post, I hinted that political scientists have actually studied this question quite extensively, and their conclusions are not necessarily what one might expect. Many political scientists believe there are compelling reasons why Obama ought to avoid nominating someone who is currently a sitting jurist, such as an appellate judge at the federal level, and instead should pick a politician – preferably someone who has a background in elected politics – as the next Supreme Court nominee. It is a position that I share.
Why do I advocate nominating an elected politician rather than a “professional” jurist? For reasons that my former Harvard colleague Gordon Silverstein cogently spells out in this recent TNR piece. As Gordon argues, “While the instinct in choosing a justice for the highest court in the land is to find the most qualified judge or legal scholar, there is a powerful case to be made that the court very much needs an experienced elected official among its ranks. Someone with the appropriate legal experience who also has faced voters and listened to constituents, someone who has rounded up votes to pass legislation and has actually implemented policy, would bring to the bench an intimate knowledge and understanding of the American political system, its institutions, and how they actually work, on the ground, in the 21st century.”
A more politically-savvy court, Gordon argues, would provide at least three benefits. First, it would reduce the number of split-decisions the Court renders because politicians are adept at using compromise and bargaining to achieve consensus. That, in turn, would provide more legal “heft” to Court decisions. Second, the Court’s decisions would be less likely to be cast in legal jargon centered on abstract theorizing and legal hair-splitting, and more likely to be expressed using easily accessible reasoning that the public understands. Third, justices would be more likely to understand the practical impact of their decisions, particularly as they pertain to implementation.
Gordon acknowledges that a Court dominated by politicians might exhibit weaknesses as well. In areas involving fundamental constitutional issues, one could argue that the Court ought not to be rendering decisions arrived at through bargaining and compromise. But this presumes that elected politicians are less capable than professional jurists in recognizing when such rights are at stake. I’m not convinced this is the case.
Note that the highest Court wasn’t always dominated by legal professionals. As David Yalof points out, of the 22 Supreme Court appointments made between 1937 and 1967, 12 of them went to individuals in the executive or legislative branches, as opposed to the judiciary. At least three other appointees were political insiders. Beginning with Nixon, however, presidents have increasingly ignored practicing politicians when making nominations and instead tapped those from the professional judiciary who possess extensive legal training. By my count, of the 19 nominees to the Supreme Court dating back to 1969, almost every one has been a sitting appellate federal judge.
The trend toward nominating professional jurists accelerated in the 1980’s with the increased polarization of Congress, against the backdrop of divided government, and the growing role of interest groups on both sides of the ideological divide in the nominating process. The new, more contentious process was evident beginning with Reagan’s unsuccessful effort to place Robert Bork on the Court. Yalof argues that the growth of the role of lawyers in the White House and the Justice Department has contributed to this trend as well, as they have provided much of the information on which presidents base their nomination choices. Lawyers, by instinct and training, prefer members of the legal profession.
The result is that Presidents are now encouraged to pick individuals with a strong legal background and relatively non-controversial opinions, rather than a politician who would make an easy target on partisan grounds alone but who, if Gordon is right, might bring real benefits to the Court.
The irony, as Yalof suggests, is that this shift in the type of nominee has made the Court less – not more – willing to defer to elected officials. As a result, the Court is more likely to be embroiled in legal controversy, which in turn insures that nomination politics are still more controversial, and that the Court’s decisions will continue to be divisive.
Obama has a chance to reverse this trend by nominating an elected official or someone with a practical understanding of politics. But will he do so? Publicly, he has expressed agreement with those, such as our own Senator Patrick Leahy, who are pushing for a nominee from outside the “judicial monastery.” The problem, however, is that Obama’s personal preference to pick someone who “understands that justice isn’t about some abstract legal theory,” is likely to collide with others’ desire to fill the position with someone meeting their own criteria. Most importantly, as a Democrat facing a Democratically-controlled Senate, he will be under strong pressure to pick a left-leaning judge. He also will face pressure from those pursuing their own brand of “identity” politics, in the form of a woman and/or Hispanic nominee. This will make it difficult for Obama to pursue his own preferences, whatever they may be. And, to date, Obama has shown little interest in spending political capital to change the way Washington works.
If news reports are credible, the short list of candidates is composed primarily, but not exclusively, of individuals who I would characterize as legal professionals. A partial but by no means exhaustive list initially included Sonia Sotomayor, an Hispanic who currently sits on the U.S. Court of Appeals for the 2nd Circuit; Elena Kagan, the current Solicitor General and formerly dean of the Harvard Law School and Diane Wood, a judge on the 7th Circuit Court of Appeals. In recent days, however, a couple of politicians, including Homeland Security chief Janet Napolitano and Michigan Gov. Jennifer Granholm, have made the media “possibility” list (as has California Supreme Court Justice Carlos Moreno.) Of course, it is in the administration’s interest to selectively leak names to curry favor with interest groups, and to keep the media guessing. Among this group, Kagan has perhaps the most inside connections, and the least visible judicial record. In short, she fits the mold of recent appointees – smart, and lacking a controversial record of judicial opinions. She would be the conservative choice and Obama, to date, has shown a propensity for taking the safe route. However, it may not be the politically feasible choice, given pressure from liberals and Hispanics.
So, who will it be? Will Obama actually push for real change when it comes to the Supreme Court, and opt for a politician? It is time to give away another “It’s the Fundamentals, Stupid” t-shirt. Send me your nominee, either in the comments section or directly by email. In the case of ties, the earlier respondent wins. As always, no wagering allowed, and employees of this blog cannot participate in the contest.