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Stanley I. Kutler: No more judges on the supreme court

[Stanley Kutler taught legal and constitutional history at the University of Wisconsin.]

Since US supreme court justice David Souter informed President Barack Obama of his intention to retire from active service, media speculation has percolated over a likely successor. The great majority of names floated have been women, many of whom had also been mentioned earlier, considering justice Ruth Bader Ginsburg's recent health issues. And not surprisingly, some names offer a twofer, with links to an important voting bloc – Hispanic the leading likelihood.

Most strikingly, the overwhelming majority of possible candidates feature lower court experience. Prior judicial experience has for 40 years been the sine quo non for qualification to serve on the supreme court. Americans believe – incorrectly – that it is mandated by the US constitution.

The supreme court has been the cockpit for close-quarter ideological combat since the south and Richard Nixon declared war on the judiciary in the late 1960s. Nominees, once almost off-handedly selected and only cursorily questioned by Congress, are now intensely vetted and examined. Apparently, the assumption has been that known judges will steadfastly maintain their ideological preconceptions. Alas! The process has not been perfect – see, for example, Harry Blackmun and David Souter.

Since Nixon's time, presidents ritualistically have promised an appointee who followed "strict construction", which, of course, was not-so-subtle code for "conservative" ideological views – whether race, reproductive rights, voting rights, rights of the accused, separation of church and state or government regulation.

Fortunately, Obama has dropped the ahistorical babble of strict construction. Such doctrine is meaningless for the long path of our constitutional history. Chief justice John Marshall wisely reminded us it is "a constitution we are expounding". The constitution is not a statute or legal code. Rather, it provides the necessary authority and energy essential for government to maintain society.

For his 34-year tenure, Marshall, without previous judicial experience, successfully framed the young US government on that basis, one which we usually called "broad" or "liberal" construction of the constitution. Chief justice Roger Taney, Marshall's successor, believed firmly in strict construction, and today he is most remembered for his infamous pro-slavery Dred Scott decision, deservedly "hooted down the pages of history".

Our political history, too, bears out the constitution's vitality, as most national leaders have chosen a broad construction of their powers. Thomas Jefferson, when in the opposition, vigorously championed a convenient doctrine of strict construction, but then behaved quite differently in the White House.

Similarly, constitutional law interpretation through most of our history, by liberal and conservative (slippery terms, of course) justices alike, has emphatically rejected the doctrine of strict construction in favour of the idea of a "living constitution".

It is a phrase loathed by justice Antonin Scalia – anyone, he said, who believes that is "an idiot." But would the constitution have survived for 222 years on the basis of only 27 amendments? Like it or not, judicial interpretation of our constitution is a fact, and it has been a vital component of our history.

The practice of naming lower court judges is not the norm in our history. The first chief justice, John Jay, lacked judicial experience, as did John Marshall. Both had distinguished political careers in the new American republic, and a great deal of evidence suggests that their rich political and real-life experiences were paramount in forming their conceptions of how the constitution should work as an organic part of always changing political reality.

Supreme court appointees can be problematic and, often unpredictable. Theodore Roosevelt wanted a man who was "right" on the question of monopolies, and his friend Henry Cabot Lodge assured him that Oliver Wendell Holmes was just the man. But early in his tenure Holmes dissented in TR's first great antitrust case, personally believing that the Sherman Anti-Trust Act was "humbug".

Franklin Roosevelt appointed eight men whose judicial philosophies sprawled across the intellectual and political spectrum, including senator Hugo Black (a former night police court judge), SEC activist William Douglas, attorney general Robert Jackson and professor Felix Frankfurter.

Dwight Eisenhower gave us Earl Warren without prior experience and William Brennan, widely regarded as the most outstanding state jurist. Their decisions surprised and even angered him. Nixon's "strict constructionist" appointments ironically included three members of the Roe v Wade majority. George W. Bush's personal list of great recent court appointments pointedly and prominently ignored his father's selection of David Souter and instead had 41's choice of Clarence Thomas at the top.

Many justices who are ranked highly by historians – Joseph Story, Samuel Miller, Louis Brandeis and Charles Evans Hughes – lacked judicial experience but had important political careers before their appointments. Admittedly, some judges without judicial experience have been disappointing to their patrons.

In recent years, lower courts (especially in the District of Columbia) have been used as tryout camps. Clarence Thomas, Antonin Scalia and John Roberts served little time on the appellate court, and their tenures offered brief auditions rather than any compelling resume of judicial behaviour. Judicial experience has become an important, even crucial, component in the nomination process over the last four decades. It has provided a convenient gauge to chart and predict ideological track records.

Enter Barack Obama, professor of constitutional law, who has boldly rejected the strict construction mythology. "I will seek someone who understands that justice isn't about some abstract legal doctrine or footnote in a casebook," he said. "It is also about how our law affects the daily realities of people's lives." He added on another occasion, that he wanted a nominee with a "quality of empathy".

The president's stated qualifications, along with obvious others such as gender and ethnicity, are all part of the picture. The projected candidates from the lower courts might well satisfy the latter set of considerations, but maybe not the first. The calls and hopes for a woman have great appeal – not to say justification. The president might well make such an appointment, and he can do so by putting less of a premium on prior judicial experience.

Since Ronald Reagan named Sandra Day O'Connor, a relatively obscure woman state judge to the court, we have gained an enormous pool of women who are elected public officials, who have made a prominent mark at the bar and who have displayed that vital "quality of empathy" the president apparently finds so vital and desirable.
Read entire article at Guardian (UK)