Monday, April 12, 2010

What’s Wrong with Putting Politicians on the Supreme Court?

We’re gearing up for another Supreme Court confirmation battle, so people are dragging out an old refrain: we’ve had enough Circuit Court judges on the Court, they tell us, so it’s about time that a president nominated someone who’s a creature of the political arena in the tradition of Earl Warren or Hugo Black. I guess that was the idea behind Orrin Hatch’s raising Hillary Clinton’s name as a potential successor to Justice Stevens over the weekend. Here’s Matthew Yglesias giving the same idea a liberal slant (my emphasis):

“[E]very time a Supreme Court seat comes open about 25% of the pundits in America point out that it would be nice to see Presidents put up some more people who are “politicians with legal experience” rather than appellate judges or whoever’s solicitor general at the moment. But this is one of these things that pundits say not just because it makes for an easy column topic but also because it’s actually true! The Supreme Court is a substantially political court. The whole discourse and atmospherics around the way Court nominees are currently selected and confirmed has become a terrible farce, and the pretense that it’s just about picking people who are really good at looking up what the law is in books is a big part of the problem.” 
I wouldn’t dream of denying that the judicial confirmation process has become a “terrible farce.” But I don’t think it would help any to start nominating practicing politicians to the Supreme Court. Indeed, I suspect it would make the process even more farcical than it already is.

When liberal and conservative ideologues get worked up over a judicial nomination, they’re usually excited one way or the other by the nominee’s judicial philosophy. From the ideologue's vantage point outside the practice of law, judicial impartiality is mostly a matter of applying a theory of legal interpretation, like “originalism” or the theory of the Constitution as a “living document.” The fact that how judges read open-ended constitutional provisions is highly correlated with whether they were appointed to the federal bench by a Democrat or a Republican, leads a lot of liberals to infer that judging is a highly political enterprise. And that suggests to them, in turn, that experienced politicians must have something vital to bring to the bench that sitting judges usually lack, although they're usually not very specific about what, exactly, that is. It's easy to say, however, what vital experience professional politicians would likely be missing.

From the standpoint of a practicing lawyer, judicial impartiality is less a doctrine residing in books of jurisprudence than the distinctive practice of a well-run courtroom. And like most complicated practices, it can only be learned in the doing because it’s not reducible to set of rules. To the lawyer arguing before them, the differences between Justice Scalia's and Justice Steven’s judicial philosophy usually pale in significance next to the understanding of what it takes to treat the litigants before them fairly that they share from having spent their professional lives in courtrooms.

In our legal system, judges only rule on actual “cases or controversies” among litigants alleging an “injury in fact.” Interpreting the law impartially so that it can be applied to the particular dispute before the court is mostly a matter of giving those litigants a fair hearing under the peculiar circumstances of the case. That’s not to say that judicial philosophies don’t matter to the outcome of particular cases, or that there won’t occasionally be a case as to which they’re determinative. It’s just to say that they’re never the whole story about any case, and very seldom the most important part of the story.

That’s why, although I cringed at the theory of judicial impartiality that was implicit in Justice Sotomayor’s “Wise Latina” speeches, I never thought it said much how she’d perform on the Court. Having been not only a Circuit Court judge, but a trial judge, an experienced commercial litigator and a prosecutor before that, she knew her way around a courtroom too well to be distracted by ill-chosen abstractions or political reflexes. That’s something you could never say with assurance about a practicing politician.

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