When Dwight David Eisenhower appointed Earl Warren to be the Chief Justice of the Supreme Court of the United States in 1953, it was the “biggest damn fool mistake [he] ever made.” The Warren Court did not perform the way President Eisenhower expected, and he wanted his money back.
Adam Liptak explains that recently retired Associate Justice David Souter was the last of the stealth appointees.
When liberal groups analyzed Justice Souter’s record as New Hampshire’s attorney general and as a justice on the state’s Supreme Court, they concluded that he was a hard-core conservative.
It didn’t quite turn out that way, though some may question whether it was Justice Souter who shifted a little to the left, or the court that shifted a lot to the right. Since then, we’ve had no big surprises:
But 1990 probably marked a turning point in the confirmation process. The six justices appointed in the two decades since have performed largely as expected, probably thanks to increased scrutiny of more robust paper trails and less ideological drift.
The contemporary nominee’s résumé yields so much valuable information, legal scholars say, that unexpected judicial decisions are much less likely now. Nominees’ backgrounds these days often include work for the executive branch in Washington and substantial service on a federal appeals court.
The reason for the accuracy is that candidates are drawn from one of two places, either federal appellate courts where they have long records of written decisions demonstrating their views, or service in the executive branch, where formal and informal discussion clarifies their true leanings, at least to others in the executive branch.
The talk that the only criteria for appointment is competence is sheer and utter nonsense. That’s not to say that anyone suggests that appointees are not competent, but competence alone will get you a seat in the gallery, provided you wait on line. It’s competence plus agenda, the clear and demonstrable showing of adherence to a political and philosophical view upon which a president, and senate, can depend.
This means that the pool of candidates for the Supremes won’t include a trench lawyer. Not for Republicans, and not for Democrats either. Not now, and now in the future. Never again. And if you lawprofs think that’s funny, you aren’t in the pool either, unless you are able to get a gig on the circuit bench. Of course, there’s a far better chance for a lawprof to wind up in a robe than your typical trench lawyer, so maybe you get a chuckle or two.
The problem is that the pool of potential appointees is so small, and so insular, that our third branch of government is comprised of an elite within an elite. For anyone who believes that the Supremes are, by virtue of their job, detached from the reality of society in general, and even the practice of law in the trenches, consider that the desire to make absolutely certain that no one gets the nod without having an absolute lock on their views means that the broadest segment of the legal profession, no less society, will never again be represented on the Court. That’s an awful lot of experience to be ignored.
Given that Supreme Court appointments are for life, in order to immunize the court from transitory political whims and empower justices to make bold decisions without fear of impact, the limitation of future appointees to be drawn from this incredibly narrow pool of federal appellate judges and top executive branch staff is frightening. These are the people who make the rules by which the rest of us live, and few of them, if any, have every actually lived life on the streets like the poor schnooks who have to abide their rulings. Their decisions describe a view of reality from on high, like the “new professionalism” of cops, or the incentives/disincentives for alleged criminals. As if they have a clue.
The irony is that presidents, who are elected based upon transitory political whims, get to name folks to the court who will sit in their seats for decades after the presidents are turned out of office. While the appointments may reflect the public’s will at the time of their appointment, that doesn’t mean that their political and legal agendas are still suited to the good of the Republic decades later, and that leaves one branch of government with potentially poor choices for a generation to come.
Of course, this cuts both ways, and whether one sees the court as too liberal or too conservative, it’s political foundation is firm and predictable. Considering how many 5-4 decisions have come from the Supremes since Justice Souter took the bench, how tenuous the basic law of the land has become with a single vote sufficient to change the rule of law 180 degrees, the Supreme Court has become little more than a proxy for political hardball based on the guy naming names.
What the American people won’t be getting is a court comprised of men and women who bear any resemblance to them, or have much more of a feel for their lives, and hence the impact of their decisions, beyond the way it looks from the heights of an appellate bench. No matter how brilliant or well-intended, there may never be another Supreme Court Justice who knows anything about life on the street again. And that won’t stop them from telling us what it’s all about.