By Christopher L. Eisgruber
Sunday, July 12, 2009
How did the Supreme Court get so boring?
Sonia Sotomayor probably won't hear that question when she faces the Senate Judiciary Committee this week. In fact, her nomination has been hailed as a series of exciting firsts: first Latina, first to grow up in a public housing project, even first known Type 1 diabetic.
But she won't be a first on every count: If confirmed as associate justice to the highest court in the land, Sotomayor will be the ninth federal appellate judge on the nine-member Supreme Court.
And the truth is, federal appeals court judges are not the most charismatic folks in the world. When they give public speeches, for instance, they are partial to discussing stuff like courtroom civility and docket congestion. (Snooze.) And despite Clarence Thomas's rags-to-robes story, Antonin Scalia's legendary wit and Ruth Bader Ginsburg's trail-brazing victories as a feminist litigator, the current high court is remarkably monochromatic -- a bunch of career jurists, professional, polished and pedigreed.
The bench didn't used to be this dull.
The justices who decided Brown v. Board of Education in 1954 were a formidable lot. Chief Justice Earl Warren was once California's governor and the Republican Party's nominee for vice president. Felix Frankfurter, a Jewish immigrant, had been the single most eminent law professor in the United States. Hugo Black was a former senator from Alabama with a bit of history in the Ku Klux Klan. Robert Jackson served as U.S. attorney general and was chief prosecutor at the Nuremberg trials.
To get an equally dynamic court today, you would need to include the likes of Jennifer Granholm, Cass Sunstein, Joe Lieberman and Ken Starr. And that's even before you try to find a modern-day counterpart for William O. Douglas, the brilliant former chairman of the Securities and Exchange Commission who irked conservatives with his libertarian bent and multiple marriages -- he had four wives in about a dozen years, each younger than the last.
The shift toward colorless competency began with Dwight Eisenhower, who believed that Harry Truman had diminished the Supreme Court by appointing political cronies. Eisenhower thought that insisting on judicial experience would restore integrity to the process. With his first appointment, Eisenhower repaid a political debt by choosing Warren, but after that, every Eisenhower nominee was a sitting judge.
John Marshall Harlan II and Potter Stewart were the quintessential Eisenhower justices. Top-flight corporate lawyers untainted by partisan politics, they delivered the moderately conservative decisions that Eisenhower wanted. Their résumés would fit perfectly on today's court. In the 1950s, though, they were a novelty -- judicial craftsmen on a court dominated by former politicians.
Eisenhower genuinely wanted to make the court less partisan, and his approach to appointments was strikingly ecumenical. When a seat on the court opened as the 1956 presidential election approached, Eisenhower searched for a Catholic Democrat because he wanted to attract Northeastern swing voters. He picked William J. Brennan, a justice on New Jersey's Supreme Court whom he considered a moderate liberal. It would be like George W. Bush choosing Sonia Sotomayor to pick up Hispanic voters for the GOP Republican Party -- in today's environment, an unthinkable gambit.
Brennan had a lot to do with making such maneuvers unthinkable. He and Warren led a civil rights revolution that made the Supreme Court a political lightning rod. From 1954 to 1969, the Warren court desegregated schools, eliminated publicly sponsored prayers and announced new rights for accused criminals. The Supreme Court appointment process changed forever. Future presidents would care intensely about the ideology of their nominees.
If Eisenhower introduced the modern era of judicial appointments, Richard Nixon cemented it in 1969 when he selected Warren Burger to replace Warren. Burger was the prototype for today's boring justice. He was a career jurist, unknown to most of the country and possessed of an insatiable appetite for administrative minutiae -- as chief justice, he reveled in procedural projects such as the Institute for Court Management and the Circuit Court Executive Act. A middling intellect, his principal qualification for a seat on the highest court was his judicial experience: He had 13 years of federal court service, more than any nominee since Edward Terry Sanford in 1923.
Burger, though, was different from Harlan and Stewart. He had publicly condemned Warren court decisions that protected the rights of accused criminals. He had also campaigned vigorously on his own behalf. He told Nixon's advisers that if they wanted a conservative justice, their best bet was to nominate a judge who had already made many conservative rulings.
Judicial experience became a crucial ingredient in the appointment process, but not because it decreased the political character of the court. Rather, appointing judges allowed presidents to calibrate exactly what kind of ideology they were getting while still claiming that their nominee was a nonpartisan umpire instead of a political ally.
While later presidents perfected this strategy, Nixon actually fumbled it in his subsequent attempts by failing to vet his nominees thoroughly. His next two choices, Clement Haynsworth (14 years of federal judicial experience) and the deplorable racist Harrold Carswell (12 years), tanked in the Senate because of ethical scandals and, in Carswell's case, doubts about his competence. Nixon settled for Harry Blackmun (13 years), a compromise candidate.
Despite Nixon's missteps, the Blackmun nomination refined the Burger model. It showed that, when presidents need a confirmable choice, a judicial record can certify a nominee as a moderate rather than an ideological purist.
Fifteen years later, Ronald Reagan resumed the pattern that Nixon started. Reagan had vowed to appoint the first female justice, a promise he kept by plucking Sandra Day O'Connor from the Arizona state courts. After that, his legal team scoured the federal courts looking for judges with unblemished conservative records.
They found two: Antonin Scalia and Robert Bork. The Senate confirmed Scalia without a single dissenting vote. Bork famously went down to defeat. Why? Partly because Democrats had gained control of the Senate between the two nominations, but also because Bork was too interesting -- he made too many blunt statements in his scholarly writings and Senate testimony. By contrast, Scalia, who became an outspoken polemicist on the court, played it safe during his hearings, at one point refusing to comment even on the 1803 case that established the court's power of judicial review.
Each unsuccessful nomination thereafter reinforced the Burger model. David Souter, with less than one year of federal court experience, turns out to be surprisingly liberal. Lesson: Find nominees with longer track records. George W. Bush's own party repudiates Harriet Miers as unqualified. Lesson: Appoint judges rather than friends.
John Roberts and Sam Alito were the ultimate Burger-model nominees. Unlike Burger, they had razor-sharp legal intellects. Like him, though, they had proved themselves as solidly conservative federal judges. As nominees, Roberts and Alito were distinguished, smooth, confirmable -- and utterly reliable ideological allies of the president who appointed them.
If Sotomayor wins confirmation, the justices will have a whopping 85 years of prior federal judicial experience and none in elected office. If the Constitution is a charter of government that regulates our political institutions, shouldn't at least one justice have inside knowledge about how those institutions work?
President Obama reportedly considered Michigan Gov. Jennifer Granholm for the Supreme Court vacancy, and some people hoped that he would choose her. But why take the risk? Imagine that it was Granholm facing the Senate tomorrow. Republicans would be clamoring that she was too "political" -- a tough charge to deny, since she's a politician. Obama would have to work hard to defend her. And to what end? She has no judicial record; he would have no idea what he was getting for his effort.
Instead, he picked a nominee with more years on the federal bench than any other in history -- 17, one better than Alito, Henry Brown and Horace Lurton, who was appointed in 1910 by William Howard Taft. Lurton also had 10 years of state court experience, for a grand total of 26 years as a judge.
During his 4 1/2 years on the court, Lurton authored no important decisions but earned a reputation as a cautious and competent justice. At 66 when he was selected, he was older than any recent nominee, but otherwise he was ahead of his time -- professional, experienced and unknown, the very picture of a 21st century justice.
In a way, the Supreme Court has entered its Lurton era. Don't expect it to end anytime soon.
Christopher L. Eisgruber is provost of Princeton University and the author of "The Next Justice: Repairing the Supreme Court Appointments Process." He will discuss this article online at 12 p.m. on Tuesday at www.washingtonpost.com/liveonline.