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The Highest, Dullest Court In the Land

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By Christopher L. Eisgruber
Sunday, July 12, 2009

How did the Supreme Court get so boring?

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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.


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