Why Obama Should Pick an Appellate Court Justice to Replace Stevens

With the announcement that Justice Stevens is stepping down from the Supreme Court at the end of the current court session, President Obama has a second opportunity to fill a Court vacancy. When his first opportunity arose last year, I did two things:  first, I offered an “It’s the Fundamentals, Stupid” t-shirt to anyone who could predict the likely nominee.  That contest was won by Conor Shaw who, appropriately enough, is now attending law school at the University of Chicago.  I also argued, in this post, that if Obama really stood for change, he should nominate a politician, as opposed to an appellate court judge, to the Supreme Court.   Predictably, the “change” candidate ignored my advice and instead nominated yet another appellate court judge, Sonya Sotomayor, who was easily confirmed to the Court by the Democrat-controlled Senate.

As I noted then, Sotomayor’s selection and confirmation made it 17 of the last 20 nominees (by my unofficial count), dating back to Nixon’s administration, who were sitting federal appellate judges prior to being nominated to join the Supreme Court.  Here’s the chart I presented then – note that I didn’t include the aborted Harriet Miers nomination (she voluntarily withdrew before the Senate took up her nomination).  Bold-faced type indicates the nominee was a politician:

The key point is that presidents at one time used to select politicians to the Court, but since Nixon’s administration that almost never happens.

As the punditocracy debates the merits of those candidates who are apparently on the current short list, including their sexual orientation, I am tempted to simply rerun my previous post in favor of nominating a politician, rather than still another sitting appellate court judge.  Of those individuals apparently on the current “short list” only Janet Napolitano fits my criteria.  (Yes, yes, I hear you: what about Hillary Clinton?  Don’t you realize she’s challenging Obama in 2012?)

Boiled down to the essentials, my argument is simple:  the Court is, in essence, a political institution.  Justices make arguments that, although based on legal reasoning and embedded within the body of law, are nonetheless at heart debates about political values and that for better or for worse, those rulings tend to track public opinion relatively closely.  The best justices, therefore, are those who are skilled at political reasoning, persuasion and coalition building.  Put another way, we’d rather have a court composed of Sandra Day O’Connors than of Antonin Scalia’s – not because O’Connor has a superior legal mind, but because her opinions tended to exhibit a very pragmatic orientation and were written with an eye toward bridging differences among the Justices.

I’m not the only one to make this argument, of course.  See, for example, this recent Boston Globe editorial.  Rather than make the same point again in the context of the current Court opening, however, I thought it might be more useful if I provided an opposing argument in favor of appointing still another appellate court judge.  (After all, I’m always saying that what sets this political blog apart is my willingness to entertain opposing viewpoints!) Toward that end, see this recent opinion column by Charles Lane on the Washington Post website.  Lane acknowledges that the Court is a political institution. But he notes that justices don’t merely pay lip service to legal precedent – by referencing previous cases and legal doctrine when issuing decisions, justices bolster the Court’s legitimacy as an “impartial” actor whose decisions do not flow strictly from the personal views of its nine members.  I think this is an important point: whenever the Court does venture into the purely political thicket, its members’ motives are already questioned (think Bush v. Gore).  Imagine if a Court of nine politicians overturned the individual mandates contained in the recently-passed health care bill – all hell would break loose.  But that is precisely my point – I can see Scalia, in a strict reading of the law, arguing against the mandates.  In contrast, a politician as justice would be less likely, I think, to jump into this political fray and instead would either decide not to take the case or would defer to the decision of Congress and the President and accept that mandates are constitutional.

Lane also makes two additional points to explain recent presidents’ tendency to nominate appellate court justices that have little to do with their legal background or expertise.  The first is the supply-side to the nomination equation: there are 167 justices sitting on the appellate courts today, compared to only 59 at the end of World War II.  So there is simply more legal talent out there from which to choose nominees.  Second (and this is Napolitano’s problem), in the post-Bork politicized confirmation era, it is simply much more difficult to confirm a politician because they possess an extensive paper trail that can be used against them.  In Lane’s words, “Politicians who, by definition, talk, write and cast votes on just about any issue under the sun are especially vulnerable.”  O’Connor, although a former state legislator, benefited by the historic nature of her selection by Reagan to be the first woman justice on the Court.   To be sure, appellate court justices have a voting record as well, but they can defend that record, Lane notes, by saying their rulings reflect the constraints imposed by adhering to statute or previous court decisions.  This, by the way, may be what undermines Elena Kagan’s chances; although supposedly the current front-runner for the nomination, she may be handicapped by some of her decisions on legal cases while serving as Obama’s Solicitor General.

There is an additional factor at play here: Obama’s pragmatic streak. For all the talk about bringing change to Washington, he has been a remarkably conventional decisionmaker in terms of adhering to precedent and pursuing, whenever possible, a middle course of action. It may be expecting too much to believe he will break the string of 11 straight appellate court nominees. If he does, it will likely be because another pragmatic political factor, such as a desire to nominate an African-American woman, for example, trumps his inclination to play it safe by selecting an appellate court judge.  In the end I expect him to pick the most liberal woman he can get through the Senate – that is, one who does not provoke a Republican filibuster.  Who might that be?  I’m open to suggestions.