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Where Have the Politician-Judges Gone?

I was reading David Garrow's review of Linda Greenhouse's book about Justice Blackmun, which quotes his awe at walking into the "Conference" of the Justices for the first time, "and there was Hugo Black, William O. Douglas, William J. Brennan Jr., John Marshall Harlan -- and I said to myself, 'What am I doing here?'" (Garrow thinks that was a good question.)

That quote, though, reminded me of something that I've been wondering about with regard to recent Supreme Court nominations: why is the pool so narrow? Every name on the totally speculative lists that are floating around for the next vacancy has basicially the same pedigree: currently sitting as a judge on a circuit court (perhaps there's a district judge or state Supreme Court judge in there somewhere, I'm not sure), previously a law professor or -- as in the case of John Roberts -- a practicing lawyer with law firm and Justice Department experience.

The justices that so awed Blackmun were all basically political actors rather than legal scholars: Black had been a Senator, Douglas a prominent New Dealer who at one point entertained presidential aspirations and was FDR's second choice for vice president in 1944, Harlan a high-profile prosecutor who had been a judge for less than a year. Surprisingly, it is Brennan, who has the reputation of being among the most politically skillful justices, who had the most conventional background as a judge, but nonetheless made his career in the crucible of New Jersey Democratic politics.

Among other justices of this era, Earl Warren had been elected governor of California, and Abe Fortas was another New Dealer, albeit one whose tragedy on the court was that he remained a little too political.

There are obviously downsides to having Justices, or too many justices at once, who think in political terms, without the rigor of constitutional jurisprudence. It was Douglas, after all, who is responsible for the "penumbras and emanations" theory of the right to privacy in the Griswold case, which is a shaky foundation for the subsequent decisions that depend on its precedent. But there's also something to be said for leavening the cold analysis of legal scholarship with the sense of reality, compromise, and incrementalism of someone who has lived in the political world, even if not an elected official. Sometimes that might make the Court less timid, in other cases it might make the Court hesitant about stepping out too far ahead of the political consensus.

Not to take anything away from Justices Breyer and Ginsburg, but I can't help but think that the Court would be different in some significant way if one of those seats was occupied by Mario Cuomo, Bruce Babbitt, or George Mitchell, all potential Clinton nominees. (The Cuomo story, I think, is some sort of garbled signals between the White House and Cuomo over whether he would accept -- typical Cuomo. Babbitt was going to face opposition from Western senators for his tenure as Secretary of the Interior, and Mitchell -- I don't know the story there.) I have a feeling that Babbitt or Mitchell might have been a little more forceful and effective in challenging the Court's intervention in politics in Bush v. Gore.

In particular, where the law professor/judge is rigidly dogmatic, I'd much prefer a politician, even a politician of similarly conservative views, because they have some experience of testing their views against the realities of life and others of different opinions.

Two Senators have been mentioned -- probably mentioned themselves -- as potential nominees, but they are not exactly of the Mitchell/Babbitt/Cuomo caliber on the other side, to say the least.

I don't mean to get into a thing about names, just to suggest that the pool of nominees, both for Bush and for the Democrat who will succeed him, should be broader than just current circuit court judges and law professors.

Posted by Mark Schmitt on June 21, 2005 | Permalink


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W/r/t Mitchell. I've heard hims say that he felt that he wanted to be in the Senate to try to get healthcare through. Of course he wasn't succesful, but that would have been a great legacy if he had.

Posted by: Abby Vigneron | Jun 21, 2005 7:24:22 PM

O'Connor is a bit of an exception, isn't she?

Posted by: rilkefan | Jun 22, 2005 3:08:55 AM

worth recalling that SC Justice Taft had a resume that included the earlier job of POTUS. (Tho instead of bringing political savvy to the court, it could be argued that he had brought cloistered abstraction to the WH, with predictable results).

Posted by: | Jun 22, 2005 7:49:50 AM

Sorry--the Taft post was by me (I try to avoid anonymous posting, but my browser forgot).

Posted by: Tad Brennan | Jun 22, 2005 7:50:50 AM

"they have some experience of testing their views against the realities of life and others of different opinions."

Is this actually true of politicians who have come up through the conservative movement? Elected in safely R districts, all the way up through a deep red Senate seat? The lack of this testing is one of the consequences of the R-induced parliamentary system.

"they are not exactly of the Mitchell/Babbitt/Cuomo caliber on the other side, to say the least."

Is there anyone of that caliber over there?

Posted by: Doug | Jun 22, 2005 8:56:36 AM

I just assumed that there are no more politician-judges for the same reason that there are no more Senator-Presidents.

Since the federal bench became an ideological battleground, the confirmation process has become such a torture that no politician would be willing to enter it, and neither would any survive. The trend, in fact, has been toward the nomination of candidates with little or no track record to examine. The fewer footholds you offer to the critics (previously referred to as "experience and qualifications for the job"), the better.

Posted by: Kagro X | Jun 22, 2005 9:50:25 AM

I would argue that the pool should be narrower. O'Connorism shows us the dangers of too much political awareness underneath those robes.

Posted by: bobo brooks | Jun 22, 2005 7:31:36 PM

I agree with your point that the scope of available nominees should be broadened. There are some potentially great jurists out there that don't even receive consideration.
Bill Bradley, for one.

Posted by: Cole | Jun 22, 2005 8:05:47 PM

Similar to an above post, I think judges are more likely to be nominated because they're more likely to be confirmed. In the nomination process, everyone likes to pretend that judges are impartial. So by virtue of the fact that she's a judge, Janice Rogers Brown might be considered more impartial than, say, Chris Cox (to pick another California conservative). And, if they've been confirmed by the Senate already, all the better (see Chertoff, Michael and Gonzalez, Alberto as nonjudicial examples).

Posted by: Jon | Jun 23, 2005 12:53:06 AM

I agree with your comment. It is noteworthy that Sandra Day O'Connor is the only member of the current Court ever to hold elective office, and is also one of the judges whose vote is not utterly predictable by ideology.
My guess is not that pols don't get nominated because they'd face opposition (professional courtesy, after all) but because they're less predictable than the obscure ideologues of the bench. Eisenhower had no idea Earl Warren would become EARL WARREN. Clinton (and his opponents) had every confidence Ginsburg and Breyer would be mousy liberals Ginsberg and Breyer.
Bush will appoint a nasty right-winger who'll be eternally grateful for the undeserved promotion, and intellectual honesty be damned. One sure vote for whatever's good for the extremist wing of the GOP-like Scalia.

Posted by: Michael Gee | Jun 23, 2005 10:10:44 AM

RE: O'Connor

I have nothing to back this up, but I have the impression that she's become more predictably conservative in recent cases, and that Kennedy has returned to his early erratic behavior. Again, I don't have the data to back this up yet, but that's been my impression.

It's also been interesting to note the recent medical marijuana and takings clause cases. Kennedy's siding with the government in both vs. his borderline libertarian opinion in Lawrence v. Texas, for example, or Scalia's belief in the primacy of the commerce clause but not the takings clause. For all the press and venom Scalia receives, particularly from the left, I think it would be fair to argue, as some recently have, that Thomas is the more consistently conservative and in many cases radical jurist.

Posted by: Jon | Jun 24, 2005 1:13:11 AM

An additional name in the case against the "professional courtesy pass" for politician judges: Abner Mikva.

Posted by: Kagro X | Jun 24, 2005 9:09:43 AM

"W/r/t Mitchell. I've heard hims say that he felt that he wanted to be in the Senate to try to get healthcare through. Of course he wasn't succesful, but that would have been a great legacy if he had."

Think bringing peace (or a close approximation to it) to Northern Ireland is a good consolation plan. The man's a hero over there.

Posted by: Urinated State of America | Jun 24, 2005 2:37:26 PM

Thank goodness we don't have Babbitt, but Cuomo would have been an improvement, and would have kept slots open for politicians and academics.

Posted by: david | Jun 27, 2005 11:06:12 PM

I thought there were arguments at the time that Mitchell apparently couldn't be appointed because of the emoluments clause?

Posted by: Scott Lemieux | Jun 29, 2005 12:05:22 AM


I just read that Mitchell was more interested in becoming baseball commissioner than Supreme Court justice. Whoops.

Also, I don't think anyone's brought this up, but I wonder what effect SOC's retirement will have on Justice Kennedy and his place on the Court.

Posted by: Jon | Jul 4, 2005 1:51:22 AM

"penumbras and emanations" theory of the right to privacy

I'm unsure exactly why this was thinking in political terms. If anything, it was just the opposite -- overly legalistic sounding and open to ridicule though the basic principle (structural theory of rights) is quite logical.

Posted by: Joe | Jul 30, 2005 10:47:09 AM

I like your site! It's great.

Posted by: Panatey Rekolin | Oct 7, 2005 2:58:10 AM