As President Barack Obama prepares to square off with Senate Republicans over his Supreme Court nominee, I offer a soft word of advice: Don’t pick a judge.
I mean this quite seriously. My Yale colleague Akhil Amar has written thoughtfully about what he calls the “judicialization” of the Supreme Court. It is rare nowadays for anyone to be selected who has not attended a top law school, enjoyed a top clerkship and spent several years on the bench. In his fine book, The Law of the Land: A Grand Tour of Our Constitutional Republic, Amar tells us this:
On the day that Samuel Alito replaced Sandra Day O’Connor in early 2006, not only was every justice a former judge, but each had been a (1) sitting (2) federal (3) circuit-court judge at the time of his or her Supreme Court appointment. Never before in history had the Court been so deeply judicialized.
Obama’s subsequent appointment of Elena Kagan, dean of Harvard Law School, broke the pattern, but Amar considers the distinction insignificant:
Granted, Kagan came to the Court without having previously served as a federal judge. But she had served as solicitor general (SG) of the United States, the one technically nonjudicial position in America that is closest to being a judge. The SG is tasked with representing the United States in courtrooms across America, and in the Supreme Court in particular. For good reason, this officer is often called “the Tenth Justice.”
The selection of justices, Amar tells us in dismay, has become much like advancement in the civil service. And this lack of “portfolio diversification,” he wants us to understand, is a new thing in the nation’s history.
What difference does background make? Amar is concerned about diversity in several important senses. It’s notorious that every sitting justice attended either Yale or Harvard. But he’s also concerned for a lack of diversity in styles of argument. Those who have spent their careers on the bench tend to think that “judges are more right than they really are.” There are more ways to think about the Constitution than the ways we think about it in the cases. Part of the triumph of Brown v. Board of Education& is the richness of its understanding of politics. Amar implies that this is in part because nobody on the Brown& court had spent a career in the judiciary. On the other hand, he attributes John Roberts’s vote to uphold the Affordable Care Act in part to the chief justice’s extensive earlier experience in the intricacies of executive-branch policymaking, including four years in the White House counsel’s office.
There’s something very Jacksonian about this argument — and I refer not to Justice Robert Jackson, one of the heroes of Amar’s fine book, but to President Andrew Jackson, who campaigned against both the judiciary and the rule of lawyers. But although Jackson is in bad odor these days, on this point I think the seventh president was mostly right. He worried that judges were becoming an aristocracy in the new nation.
Amar doesn’t go quite so far, but perhaps he should. Both major parties are facing Jacksonian moments, with their bases believing — with reason, I would say — that their views are rarely reflected or even seriously solicited in the making of policy. More and more they see what goes on in the power centers they mistrust (Washington and Wall Street) as an ever-heavier burden of impositions. One needn’t share this opinion to see that it exists.
How does this relate to the judicialization of the Supreme Court? Because of the system that produces the justices, few Americans have heard of any of the nominees before they are nominated. Already, then, there exists a barrier that nonlawyers can’t easily breach. And yet in the past, the Supreme Court’s great justices have included both politicians and prominent advocates, some of them household names. Justices like Earl Warren, Hugo Black and Salmon Chase were already widely known. So was William Howard Taft, former president. Thurgood Marshall and Louis Brandeis were practically household names.
This isn’t to suggest that selecting a non-Ivy League nonjudge who has not been a clerk would suddenly cure the nation of its current passionate mistrust toward those in authority. But it might help.