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federal appellate judge, and five of ten overall nominees (including three nominees either rejected by the Senate or withdrawn by the President) were, like Scalia, sitting on the D.C. Circuit Court of Appeals when nominated.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.

Comments

[Rule Of Law]

Since this country was based on the rule of law, not man, and the courts are there, ostensibly, to provide protection for the people, wouldn't it make sense to nominate persons who have extensive experience doing just that? An attorney like Jerry Spence, for instance, who has spent a lifetime defending Americans, or Tony Serra of SF whose work on behalf of all of us is legendary. These guys know the law and how to use it in the best interest of the people, not the politicians or corporations. I'm sure there are many more out there.

[anelder]

I too believe one should look for the best, elite, to rise to the court. I also believe that a man of noble character is above all necessary. I do not find that either Scalia nor Thomas fit that role. Judges must not rule with ideology - these men do. I'm holding out on Aiela and Roberts.

The Constitution of our country is an instrument that put forth the rights of man and clarified what government may not do. I am sure these rights were not thought to be complete in the eighteenth century. The character and intellect of this body of men were such that they never would have concluded that they were the end all - therefore the institution of the Supreme Court. It would have been much easier to create a much longer document to be inclusive of every specific and concluding with no other variation being allowed. They were smarter than that. they knew that the guidelines set forth were sufficient to allow future men of like character and nobility to follow their lead.

[3fingerbrown]

I think the word "elitist" is misused in this context.

The author uses it as though it were a bad thing, when in fact it's a good thing. We all want the shrewdest, smartest, most talented, most accomplished, and hardest-working among us to be our leaders--don't we? (The backlash against a ninny like Palin running for vice president was elitism at its best.)

The author outs himself as an elitist when he writes, "I am not defending mediocrity." And good for him. Mediocrity has wrecked our country and shouldn't be defended or promoted. It's a pity that we've let the word "elitism" become synonymous with snobbery, narrow-mindedness and bigotry, when in its strictest sense, it's the opposite of those things.

Elitism worked very well for this country in the years before "elite" became a dirty word. Now, with the very best women, gays, and members of ethnic minorities able to participate in the system as never before, elitism should work better than ever because the pool of elites to choose from is that much deeper.

[BluePrideStephen]

Taking pragmatism further, let's look at why the repubs want the choice from the ranks of the appellate court judges. Repubs were in control and packed the courts for the last 8 years. Sure, they'd like president Obama to choose from the bench they selected. They still get the team they wanted. Typical to their strict adherence to party first, repubs frame any situation so as to encompass their goals while excluding all others'. Beware the repub framework. There are always more issues, more options and more valued opinions.

[LewDan]

As a non-lawyer I agree but would put it differently.

Justices should be Judges not Law Clerks. They should seek JUSTICE not law enforcement. They SHOULD be "activist." SCOTUS should be an equal branch of government not just a tie-breaker.

I think the law is about justice. Lawyers think justice is about the law. Since we have a "justice system" instead of a "law system" I suspect the lawyers are being disingenuous.

Obviously "empathy" is necessary to dispense justice. Just as obviously the abhorrence to empathy is to undermine justice. Good law would serve justice. Promoting law over justice only serves bad law. Its an attempt to neuter SCOTUS and the courts to ensure they don't interfere with corrupt politicians legislating bad law that promotes special interests over justice.

[Aranxa]

Scalia is the perfect example for picking someone without his resume.

[Isis N]

We need someone who will follow the laws, not find excuses not to...

[Aranxa]

The Supreme Court does not follow the laws, they interpret the laws and decide what laws are constitutional, i.e. legal for others to follow.

[Isis N]

Interpretation of laws is part of following them.

[LewDan]

SCOTUS is not the agency of the Congress that administers legislative decisions. SCOTUS runs the third branch of government; an EQUAL branch, a branch that is supposed to JUDGE, impartially, apolitically -- in the interests of justice. They don't need to excuse their decisions.

[LeftRight]

Considering that the ENTIRE JOB of the Supreme Court is to INTERPRET the laws, I would say that you are completely wrong. If a law is found by the Supreme Court to not meet the requirements of Constitutionality, they have an OBLIGATION to throw that law out!

[Isis N]

Well, lookie here... If Interpretation is what their job is, they HAVE TO FOLLOW THE LAWS THEY INTERPRET! Thus, they still need to follow laws, just like the rest of society!!

[KYJurisDoctor]

I would really prefer a non judge, myself. Maybe, someone who has been a prosecutor/defense lawyer, held elective, like a governor/attorney general combo, but willing ONLY to say what the law is -- and not make law as a legislator.

[oncethere]

Reminds me of Woody Allen's comment after completing 20 years of psychoanal­ysis---tha­t he is now a perfectly well-adjusted 19th century Viennese gentleman.