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The Next Supreme Court Justice: Time for a Politician?

5 years ago
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Judging from the advice that Barack Obama is getting from the sidelines, the president should tap for the Supreme Court a middle-of-the-road, non-activist Protestant woman elected official with judicial experience and temperament who can energize the court's liberal wing without giving conservatives a reason to filibuster her nomination.

Gulp! Meeting all those conflicting standards is about as realistic as Obama calling over to Central Casting to demand, "Get me the female version of John Marshall." Especially since this mythical would-be justice also should never have written or said anything interesting about abortion, affirmative action, the legal rights of accused terrorists, the 10th Amendment or health insurance mandates.

For all the symbolic nods to lonely deliberation and public consultation with Senate Republicans, the president probably has a good idea whom he will choose to replace John Paul Stevens. Sonia Sotomayor was nominated less than a year ago and most of the leading contenders for the Stevens seat were scrutinized by the White House then. What this means -- barring an uncharacteristic Obama bombshell -- is that outgoing Gov. Jennifer Granholm of Michigan and Secretary of Homeland Security Janet Napolitano, a former Arizona governor, are the only Supreme Court prospects who have ever faced the voters for an office grander than student council president.

Both Granholm and Napolitano are considered long shots. The three most likely nominees, Solicitor General Elena Kagan (a former Harvard law school dean) and two federal judges, Diane Wood and Merrick Garland (yes, he is male), all come out of the traditional legal enclave.

"I think this is the least diverse Supreme Court in history, unless all you care about is race and gender," said Sanford Levinson, a law school professor at the University of Texas. Levinson's point is that successive presidents beginning with Gerald Ford have created the expectation that all Supreme Court justices will have prior judicial experience. As a result, the life experience of all nine justices since law school largely has been narrow and abstract. "The only member of the current court who has any regard for Congress is Stephen Breyer," Levinson said in an interview. "And that's because Breyer once worked on Capitol Hill -- and he clearly relishes that part of his life."

Biography, of course, is not destiny, especially on the Supreme Court. Clarence Thomas briefly served as a Senate aide in the late 1970s, although it is impossible to detect a hint of this line on his resume in his conservative opinions. From January's Citizens United decision reversing decades of congressional legislation restricting corporate political activity to increasingly aggressive challenges to the voting rights law by the conservative bloc, the Supreme Court has become increasingly disdainful of Congress, all but scorning it as a lesser branch of government. Six of the nine current justices (everyone except Stevens, Ruth Bader Ginsburg and Anthony Kennedy) have served in the executive branch of government (mostly at the Justice Department). And this collective experience shows in the court's tendency to defer to executive power.

Not since 1949 with the appointment of former senator Sherman Minton has any justice been named to the court who ever had served in Congress. Barring a jaw-dropping surprise from Obama (Justice Orrin Hatch?) that unfortunate 61-year record is unlikely to change any time soon. The two most legally respected Senate Democrats (Sheldon Whitehouse of Rhode Island and Amy Klobuchar of Minnesota) both hail from states with Republican governors, who would be empowered to choose their successors. Klobuchar, though, offered a far more memorable explanation why she could never be nominated for the court: "Remember Sotomayor, the 'wise Latina woman'? You can't imagine how many times I referred to myself as a 'wise Slovenian woman.' It's over."

Liberals long for a justice with proven political skills in hopes that she or he could lure Kennedy -- the swing vote on an ideological divided court -- to abandon the conservatives. These glad-handing skills are part of the myth of Justice William Brennan, whose retirement in 1990 eventually led to Stevens becoming the leader of the court's liberals. But as Stevens himself explained in a 2007 interview with The New York Times, "One mistake that's often made by a lot people writing about the court, they talk about how Brennan was a master of getting five votes. ... But it's simply not right to say that he was able to craft a majority. He just had five votes on his side!"

The importance of Supreme Court justices who have served as senators or governors -- or did something in the executive branch other than write legal briefs -- is that they understand how government really works in all its "we are doing the best we can" messy glory. This larger vision was there for path-blazing 1960s Chief Justice Earl Warren (a former California governor and vice presidential nominee) as well as the influential former Justice Sandra Day O'Connor, who was elected to two terms in the Arizona Senate.

More than any president, Franklin Roosevelt understood the importance of diversity of experience on the Supreme Court. "FDR did subscribe to the idea that there was a place on the court for men who had come into contact with reality beyond law books," said Jeff Shesol, the author of a just-published history of the 1937 court-packing fight, "Supreme Power: Franklin Roosevelt vs. the Supreme Court." "There was a notion in those days that the Supreme Court was where successful politicians could close out their careers in public service." FDR's court appointees included two sitting senators, Hugo Black and James Byrnes, as well as Frank Murphy, the former governor of Michigan.

But those days appear to be gone for good, leaving behind a sense that the professionalization of today's Supreme Court (only trained judges and a few law professors need apply) has made it the cloistered branch of government. Maybe the pendulum might have shifted the other way if Gov. Mario Cuomo of New York had accepted Bill Clinton's offer of a Supreme Court seat in 1993. Which is why it will be so intriguing if Obama, a former professor of constitutional law, cuts against the historical grain to nominate Granholm or Napolitano or (gasp) another politician.

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