Joe Biden has been drawing flak on the right for the narrowness of his Supreme Court nominee pool, having promised to pick a Black woman to replace retiring Justice Stephen Breyer. But in one key way, his reported short list actually has more variety than Americans might have expected: One of his candidates is a state-court justice.
Nearly every nominee for the high court in the past 40 years has been a sitting federal appeals-court judge. Every justice Donald Trump got confirmed was a federal appellate judge. Same for Bill Clinton, George W. Bush and George H.W. Bush. The sole exception in four decades, Obama nominee Elena Kagan, was a law-school dean and the U.S. solicitor general — no stranger to the legal establishment.
You’d never know this, but there’s no requirement at all for the president to use federal courts as the farm team for the Supreme Court. In fact, by the standards of history, it represents a huge, artificial narrowing of the talent pool and life perspectives that we get on the nation’s highest court.
To call this trend a sharp departure from past court picks is an understatement. For most of the Supreme Court’s history, nominees came from a wide variety of backgrounds. There were politicians galore; 58 of them, including governors (Charles Evans Hughes, Frank Murphy, Earl Warren) and senators (Hugo Black, James Byrnes, Sherman Minton), as well as legal scholars (Felix Frankfurter) and private practitioners with ties to certain policy issues (Louis Brandeis) or a powerful supporter (Abe Fortas).
Some Republicans are clearly struggling to respond to Biden’s vow to name the first Black woman nominee. Louisiana Sen. John Kennedy’s comment that the next Supreme Court justice should “know a law book from a J. Crew catalog,” was less a dog whistle than a foghorn — a not-so-subtle notion that Biden’s choice would likely fall short of the qualifications needed for a justice.
As a sneer — or smear — of the likely contenders, it’s wildly off the mark. All of the potential candidates have years of judicial experience. One potential Biden pick does depart from the rigidity of the recent past: Leondra Kruger, who has been on the California Supreme Court for eight years, would not come from the federal bench. (Another choice, federal district court judge J. Michelle Childs, has her appeals court nomination still pending.)
Regardless, Biden is far from the first president to pursue demographic diversity. And as recent history has shown, the whole exercise in predicting a justice’s success when assessing their “qualifications” is a fool’s errand.
For instance, Sandra Day O’Connor was seen as an “affirmative action pick” in the minds of some critics, although Ronald Reagan managed to avoid Biden’s arguable misstep by proposing only that one of his first choices would be a woman and by not limiting the field to women only. But Reagan was clearly determined to choose a woman, and he reached down into the mid-level Arizona court system to choose O’Connor. As it turned out, her prior experience as a Republican floor leader in the Arizona state Senate honed her skills at finding consensus and made her a highly effective justice.
Similarly, George H.W. Bush did not promise to choose a Black person when Thurgood Marshall retired. But anyone who thought Bush wouldn’t do so to replace the first and only African American justice should probably not have been trusted to operate light machinery. Clarence Thomas’ formal credentials were thin (and his candor in response to Anita Hill’s accusations of sexual harassment was, to be charitable, limited), but in the decades since he has become a jurisprudential hero to conservatives for his eagerness to dispense with decades of precedents in pursuit of his once-fringe theories.
More than any other background, the absence of any political experience may be the explanation for why some Supreme Court decisions seem to have little connection to real life. When Chief Justice John Roberts gutted the key element of the Voting Rights Act, he asserted that the evils of past voter suppression had effectively vanished. Justice Antonin Scalia went further; noting that the law had been reaffirmed with a 98-0 vote in the Senate a few years earlier, Scalia concluded that the law was “perpetuating a racial entitlement” — not the more obvious conclusion that it was the overwhelming preference of the political branch of government. It’s not hard to imagine what a justice marinated in politics might have had to say about that.
The broader point here is that, in a nine-member institution, “diversity” is a goal with too many facets to be simultaneously accomplished. Right now, there’s only one justice — Amy Coney Barrett — who did not go to Harvard or Yale law school. There is not a single Protestant on the court. There’s not and never has been a single Asian American. And beyond race, gender and ethnicity, the lack of diversity in background is especially unsettling.
The fact that justices are almost all drawn from the federal bench provides a fig leaf behind which they can assert their independence from politics. (Roberts, Thomas, Breyer and Barrett have all made such public claims recently.) In fact, many have served behind the scenes — in the White House, in Congress Congress — as champions of one side or another. More striking is that these “apolitical” justices have been much more predictable in their votes than justices who came with political backgrounds. (Harry Truman’s Tom Clark and John F. Kennedy’s Byron White became leading judicial conservatives; Republicans from Hughes to Warren became strong liberal voices).
Equally significant is that with this reflexive reach for sitting appeals court judges, the confirmation process has never been more polarized. In today’s climate, there’s universal understanding that justices will, in almost every case, back the ideological preferences of the party whose president picked them. (When a Scalia champion noted that he voted to strike down a flag burning law on First Amendment grounds, one Supreme Court journalist said, “OK that’s one case. Can you name another?”)
In fact, in recent times, only Clinton seemed intrigued by the idea of returning some politics to the bench. When Byron White retired in 1993, Clinton offered the post to then-New York Gov. Mario Cuomo, who donned his “Hamlet” robes and ultimately said “no.” Clinton later toyed with the idea of choosing former Arizona Gov. and Interior Secretary Bruce Babbitt, before offering the post to Ruth Bader Ginsburg, another federal judge. (Current speculation about Vice President Kamala Harris is best thought of as “posts from people with too much time on their hands.”
A final point: Even if the choice is confined to those with judicial experience, the question remains: What kind of experience? Serving on a district court means a nominee has presided over trials, with real life parties, not just reviewing briefs. Serving on a state supreme court may provide a richer experience than a federal appeals court.
Look long enough at this question and the one clear conclusion is that there are no formal “qualifications” that can measure the fitness of a nominee. Character, temperament and, yes, ideology are part of the equation. I’d add one more standard: the willingness to give honest answers at the confirmation hearing. But by that measure, only Ruth Bader Ginsburg — who bluntly asserted abortion rights were “essential to women’s equality” and was confirmed 96-3 — qualifies.
----------------------------------------
By: Jeff Greenfield
Title: Opinion | What Are the ‘Right’ Qualifications for the Supreme Court? There Are None.
Sourced From: www.politico.com/news/magazine/2022/02/08/right-qualifications-supreme-court-justices-none-experience-00006287
Published Date: Tue, 08 Feb 2022 04:30:00 EST
