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Saturday, October 29, 2005

Weighing Judicial and Legislative Experience

Today, the AP's Jesse J. Holland writes the following about the President's possible selection process for the Supreme Court.

Harriet Miers' failed Supreme Court nomination is driving President Bush back to a tried-and-true formula for filling a high court vacancy: tapping a federal or state judge with a solid conservative paper trail.
Last month, I penned an editorial on the judicial selection process for The Undecided, a political journal published by students at Pomona College. My premise: President Bush should not limit his choice to a sitting judge; rather, he should nominate someone with a background that at least includes experience in a legislative or executive branch.

At the commencement of the Senate Judiciary Committee’s hearings on Judge John G. Roberts’ nomination for Chief Justice, Sen. Richard Lugar (D-Ind.) proclaimed Roberts to be “supremely qualified” to serve on the Court. To buttress this claim, Lugar cited Roberts’ exceptional command of law: his graduation magna cum laude from Harvard Law School, a clerkship with then-Associate Justice William Rehnquist, tenures as Associate White House Counsel in the Reagan administration and principal Deputy Solicitor General in the first Bush administration, and service on the Court of Appeals for the D.C. Circuit.

Indeed, Roberts does have an impressively extensive grasp of law, as evinced by his nearly twenty hours of testimony before the Judiciary Committee over the course of four days in September. No one on the left or on the right would truthfully deny this. But the debate over Roberts’ grasp of American jurisprudence leaves aside a more fundamental question that should be asked about every nominee to the Supreme Court: will he be a good Justice?

While Roberts has an ample background inside the judicial branch, his résumé is conspicuously devoid of experience in legislative or executive posts. Roberts has never run for political office, and save for judicial work in two presidential administrations, he has not served in politically appointed positions. As a result, Roberts has never been required to engage in the type of compromise and horse trading that is necessary in government – and it’s unclear that he is particularly skilled in these areas.

Rightly or wrongly, the Supreme Court is an inherently political institution. That is not to say that the Court is, or was intended to be, a super-legislature. However, just like in any other democratic organization, members of the Court must build coalitions and foster relationships in order to be ultimately successful. The political skills honed in the halls of Congress and inside the walls of the West Wing prove highly useful when attempting to expand a divided 5-4 decision into a decisive 7-2 ruling or wooing the key swing vote when the most important issues are on the line. Perhaps this is why more than two-fifths of all Supreme Court Justices have served in a legislature and more than one-fifth have served in Congress. Perhaps this is also why, with the exception of the period between the retirement of Justice Hugo Black in 1971 and the confirmation of Justice O’Connor in 1981, the Supreme Court has always had at least one member with legislative experience.

With the pending retirement of Justice O’Connor, President Bush has the opportunity to further shape the Supreme Court for decades to come. Although the President will inevitably be lobbied to nominate someone who, like John Roberts, is deep in judicial experience but weak in legislative or executive background, he would be remiss in his duty if he neglected to consider a member of Congress or a governor for the seat (seven governors have gone on to serve on the Court). Senate Judiciary Chairman Arlen Specter (R-Pa.) has said as much during the hearing process.

Some might claim that politicians, particularly legislators, are more prone to “judicial activism.” The term itself is merely a ruse by conservatives to denigrate the liberal justices of the Warren Court era. (What irked conservatives most was not how certain Justices reach their conclusions, but rather that those conclusions were liberal.) The fact remains that conservatives are not opposed to bouts of actual judicial activism. As Paul Gerwitz and Chad Golder note in a July, 2005, Op-Ed for The New York Times, judging by propensity to overturn Congressional law, Justices Antonin Scalia and Clarence Thomas – the originalists – are two of the three most “activist” members of the Court.

Leaving aside the debate over judicial activism (as opposed to liberalism), there is no shortage of Republican legislators who would be well suited for the Court. In July, Senate Minority Leader Harry Reid (D-NV) listed off a handful, including Sen. Judd Gregg (R-NH), a stalwart conservative. Gregg, a lawyer who previously served four terms in the U.S. House and two terms as New Hampshire Governor, would be a particularly good fit for the Supreme Court given his proven ability to work with people of all beliefs and ideologies to achieve results.

And what, if not achieving tangible results, is the purpose of the Supreme Court? Although it is imperative for each Justice to have a firm grasp of the law, Supreme Court decisions should not be entirely academic and rhetorical flourishes. Rooted in the law and the Constitution, decisions must also take into consideration the ramifications of each case – even if some on either the far right or the far left believe this to be “judicial activism.” Those who have served on the bench for decades can certainly do this, but who could better gauge the political consequences of a ruling better than one who has stood for public office? Who could better understand the Constitution’s checks and balances, and more importantly their relevance to the lives of Americans, than one who has served in multiple branches of government?

The Supreme Court need not consist solely of theoreticians and brilliant legal minds. President Bush and future presidents would be well served to nominate men and women who both have a command of Constitutional issues and the real-world experience necessary to be the best Supreme Court Justice – even if it enables the naysayers to continue to complain about perceived “judicial activism.”

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