06/17/2009 05:12 am ET Updated May 25, 2011

The Right's Elitism on Judges

Listening to conservatives and Republicans argue in recent days that only current appellate court judges are qualified to serve on the United States Supreme Court, it struck me just how elitist the right had become on the issue of the judiciary.

No doubt, being in law school, reading dozens if not hundreds of Supreme Court decisions over the past two years, this notion had already begun to become clear to me. The extent to which judicial conservatives have isolated themselves in ivory towers in recent decades, disregarding the actual effects of their ideologically driven decisions (or, in the parlance of Barack Obama, lacking "empathy"), has been hard to swallow for someone like me who fashions himself a pragmatist.

But the latest debate stands out nevertheless. Is there really such a thing as one, uniquely qualified Supreme Court nominee, no others in the legal community around the country could match? And does such a nominee necessarily have to have the exact same profile as Antonin Scalia? Because that seems to be what this is all about. Indeed, ever since Scalia was approved by the Senate in 1986, every single successful nominee to the Supreme Court has had Scalia's profile as a former federal appellate judge, and five of ten overall nominees (including three nominees either rejected by the Senate or withdrawn by the President) were, like Scalia, sitting on the D.C. Circuit Court of Appeals when nominated. Prior to Scalia, fewer than half of all successful nominees during the post-war era had served on a federal appellate court, and just two of nineteen successful nominees during the period served on the D.C. Circuit Court of Appeals.

This isn't to say that I am trying to occupy the space once held by the late Roman Hruska, who famously said in defense of Richard Nixon's failed nomination of G. Harrold Carswell to the Supreme Court, "Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Frankfurters and Cardozos." I am not defending mediocrity. What's more, I do not think for a minute that federal appellate judges, whether on the D.C. Circuit or elsewhere, should be removed from consideration as potential successors to Justice David Souter on the Supreme Court.

But there are plenty of members of the legal community in this country who do not currently serve on a federal appellate court who would make very strong Supreme Court Justices, just as plenty of Justices in the past have been devoid of federal appellate experience before joining the Supreme Court. Chief Justice Earl Warren, late of my alma mater and a Governor and state Attorney General before joining the Supreme Court, immediately comes to mind as the exemplar of a Justice who succeeded despite not having previously served on a federal appellate court. Others, from Sandra Day O'Connor to William Brennan to Thurgood Marshall all had exceedingly distinguished careers on the Supreme Court without fitting Scalia's profile.

So while conservatives and Republicans hew to their elitist view that President Obama must appoint someone just like Justice Scalia to the Supreme Court, a fierce ideologue who seems to care little about the impact his decisions will have on actual people around the country, I am glad to hear that the President prizes empathy as an attribute necessary for the next Supreme Court Justice and hope he tunes out those on the right arguing that he must limit his choices to current federal appellate judges.