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.