An Online Journal of Political Commentary & Analysis
Volume V, Issue # 201, August 6, 2003
Dr. Almon Leroy Way, Jr., Editor
Government Committed to & Acting in Accord with Conservative Principles
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By Dr. Mark Tushnet

In this presentation, I will discuss a very important question regarding operation of the American constitutional system--the question of the criteria U.S. Senators should use in determining whether to vote in favor of a proposed appointment to the Federal Courts, and especially the U.S. Supreme Court. My observations are informed by historical ex- perience and, I believe, constitutional principle . I begin with some general comments about whether nominees must show that they are particularly qualified for the appoint- ment or whether, in contrast, those who oppose the nomination must show that the nom- inees are not qualified.

My comments then turn to the relevance of political experience to appointment to the Federal Courts, and especially the U.S. Supreme Court. In my brief comments, I will provide some snapshots from history, which indicate that many Supreme Court justices, including some of the most celebrated, have had substantial experience at the national political level. After giving these snapshots, I will explain why I think that such experi- ence is an important asset that a person can bring to the Supreme Court. I do not argue, of course, that only people with such experience should be appointed to the Supreme Court, but rather that the Court serves us best when it contains a mixture of people with different backgrounds, and among those backgrounds should be some with substantial national political experience.

I believe that constitutional principle shows that nominations come to the U.S. Senate essentially in equipoise, because the considerations relevant to a burden of persuasion are basically in balance. This conclusion seems to me supported by the most basic as- pects of our system of separation of powers and checks and balances, famously de- scribed by James Madison in Federalist 51 as one in which ambition counters ambition. That is, the separation-of-powers and checks-and-balances system works best when each branch of government involved in the decision-making–here, the President and the Sen- ate–take positions that each calculates independently would serve the American people best.

In the context of judicial nominations, the process of ambition countering ambition works in this way: The nominee and his or her supporters can point out that the nomination was made by the President, who presumptively has the support of the people of the United States of America as a whole, having been chosen by a majority of them. Senators can reasonably respond that they too were chosen by a majority of the American people, taken as a whole. Indeed, they can note that the President was chosen by a majority of the American people in a single election, capturing the people's views at a moment in time, while Senators were chosen in a series of elections that, taken together, might better capture the more enduring values of the American people. In that connection, questions of timing may matter as well: The more remote the presidential election is, the more powerful is the Senate's claim to represent the people at the time of the nomina- tion.

The historical record is, unsurprisingly, subject to varying interpretations. One historian describes the Senate's role as "reactive," responding to the initiative taken by the President in selecting a nominee . Presidents always have political allies in the Senate, who almost always take the position that the nominee is fully qualified for the position and that, in any event, the President's judgment that the nominee is qualified deserves some deference. Evidence taken from statements by supporters of a nomination is therefore, in my judgment, less valuable than evidence taken from statements by a nomination's opponents. In addition, the confirmation of a nominee has often been some- thing of a foregone conclusion, which makes statements of principle on the question of confirmation something of a free shot by supporters and opponents: The supporters can structure their comments to lay the groundwork for using the confirmation as a prece- dent, and the opponents can dismiss those statements because they have no effect on the confirmation process.

These considerations lead me to conclude that the most historically informed inquiry would examine highly contested nominations, a much smaller number, of course, than all nominations. Dean Solomon describes the history as one in which "politics, policy, and professionalism" all play a role. He points out that "policy concerns dominate when presidents attempt to transform governmental structures or policies and perceive the Supreme Court as a necessary ally in accomplishing that agenda." Controversy has arisen when presidents made selections based on concerns that the Senate did not share, whether the disagreement was over the policy course the President sought to set through the nominations or over the patronage-type politics the President pursued in selecting a nominee.

I would summarize a complex history by saying that, in general, opponents have never thought that the mere fact of nomination carried with it any special presumption in favor of the nomination. Nomination contests have focused on whatever seemed relevant at the time. The nominee's ideology, the nominee's performance in executive office pursu- ing policies with which the Senate did not agree, whether the nomination would have particularly dramatic effects on the overall direction of the Court, the nominee's back- ground, whether the President is using the nomination essentially as a patronage ap- pointment or to appeal to some particular interest group–all this has been fair game. In my view, that is precisely the way the system of ambition countering ambition should work.

I turn now to the question of political experience as a qualification for judicial office. Consider first the membership of the Supreme Court when it decided Brown v. Board of Education (l954). The Chief Justice had been Governor of California, the Republican Party's candidate for the Vice-Presidency in 1948, and a realistic contender for the presidential nomination in 1952, until Dwight Eisenhower entered the race. Hugo Black had been a U.S. Senator and a leader in promoting some of President Franklin Delano Roosevelt's most important legislative initiatives. William O. Douglas had been a presi- dential adviser and chairman of one of the New Deal's major administrative agencies, the Securities and Exchange Commission. Stanley Reed had been a state legislator, general counsel to an important Depression-era agency, and U.S. Solicitor General. Felix Frankfurter had been a close presidential adviser and a major public commentator on the Supreme Court and the U.S. Constitution. Robert Jackson had been Solicitor General and Attorney General. Tom Clark had been a close presidential adviser and Attorney General under Harry S. Truman. Even the least distinguished members of the Brown Court had significant national political experience: Harold Burton had been mayor of Cleveland and a Senator, and Sherman Minton had been a U.S. Senator from Indiana before his 1940 election defeat, after which he was appointed to the Federal court of Appeals.

The substantial political experience represented on the Brown Court was not unique, or a response to the Court's obstructionism during the early New Deal, as a second snapshot reveals. The Supreme Court in the 1920s also had several members with substantial na- tional political experience. The Chief Justice, William Howard Taft, had of course been President of the United States. James McReynolds had been U.S. Attorney General. Louis Brandeis had been a major public figure, leading the nation's consumer movement. Joseph McKenna had been a member of the U.S. House of Representatives and, briefly, U.S. Attorney General. And George Sutherland had been a leading figure in the United States Senate, after having served in the state legislature and the U.S. House of Repre- sentatives.

A third snapshot includes the men who have served as Chief Justice. John Jay, of course, had been an important diplomat for the new nation and an author of a handful of the Federalist Papers. John Marshall had been a Virginia legislator, an important legal and political adviser to President George Washington, a member of the U.S. House of Representatives, and, briefly, U.S . Secretary of State. Roger Taney had been, again, a close adviser to President Andrew Jackson, Secretary of the Treasury, and Attorney General . Salmon Chase was a governor and U.S. Senator, and President Abraham Lin- coln's Secretary of the Treasury, and, even while serving on the Supreme Court, a per- sistent potential candidate for the Presidency. Edward Douglass White served in the U.S. Senate for three years before his appointment as Chief Justice. I have already men- tioned William Howard Taft. Taft's successor, Charles Evans Hughes, had been Gover- nor of New York for two terms before his appointment to the Supreme Court, and was the unsuccessful Republican candidate for the Presidency in 1916. Before his reappoint- ment as Chief Justice, Hughes served as Secretary of State. Fred Vinson was a member of the U.S. House of Representatives, and, after resigning as a federal judge, occupied a number of important positions in Franklin Roosevelt's wartime administration before becoming Secretary of the Treasury in 1945.

My final snapshot is drawn from a list of Supreme Court justices provided in the first pages of the constitutional law casebook of which I am a co-author. The list is designed, we say, "to offer at least some sense of the background, personality, and intellectual style of the justices who have had the greatest impact on modern constitutional law." Omitting the Supreme Court's present members, we describe 29 justices, of whom seventeen, in my judgment, had substantial political experience, almost all of them on the national level.

I should note at this point an important qualification. Of course, determining whether someone has had substantial political experience on the national level is a matter of judgment, and I have no doubt that some of my judgments could be challenged. In my efforts to count and evaluate, for example, I treat Louis Brandeis and Thurgood Mar- shall as people with substantial national political experience, even though neither had occupied elective office before they became justices, and Brandeis had not held even an appointive national office. But I did not include Lewis Powell in my list of justices with substantial national political experience, despite the important positions he held in Vir- ginia's education system during the early years of racial desegregation and despite the fact that he had been President of the American Bar Association. I counted serving, even briefly, as U.S. Attorney General as having national political experience, but what of Justice Byron White's service as Deputy Attorney General?

The snapshots I have given indicate rather clearly, I think, that over the course of U.S. history, substantial experience in national politics has been regarded as an asset for Supreme Court justices. This is not to say that such experience has been a prerequisite for appointment, or that justices with such experience have uniformly been better, ac- cording to any relevant criteria, than justices without it. Rather, it is to say only that the judgment of presidents and Senators appears to be that having a Court with some jus- tices with national political experience is valuable for the Court and the nation.

What might explain that judgment? I will identify three reasons, in decreasing order of importance, for thinking that the Supreme Court's quality, and therefore the quality of constitutional law, is improved when some justices have had significant national political experience. Again, of course, one's view about the quality of constitutional adjudication depends at least in part on the general understanding one has about what constitutional adjudication is, and each Senator will have to assess what I have to say in light of his or her individual understanding about that question.

The most important reason for thinking that substantial national political experience is a valuable attribute of Supreme Court justices is that an important component of what we want from Supreme Court justices is what Dean Anthony Kronman of Yale Law School calls prudence or practical wisdom, precisely because justices are called upon, not to articulate principles of justice in the abstract, but rather to develop principles of justice suitable for regulating government in the present day, under real-world conditions.

We can find practical wisdom in many places, of course, but people with substantial na- tional political experience have two characteristics that make them particularly suitable candidates for finding it. First, they have displayed their capacity to exercise practical wisdom in their public lives. So, we simply have a larger evidentiary base for evaluating a nominee's capacity to exercise practical wisdom when the nominee has been an im- portant public figure. No doubt backroom advisers and lawyers in private practice can have practical wisdom, but only those whom they advise will be able to say with confi- dence that the nominees are indeed people of sound practical judgment.

Second, an important reason that people become successful public figures over the long run is that they actually demonstrate their good judgment. Among other things, success requires that political figures listen well to people with views different from theirs, and learn how to respect and, to some degree, accommodate those views without yielding on what is fundamental to the political actor. Here, substantial national political experience does not itself give the person a particular asset, such as knowledge about the realities of government that he or she can contribute to the Court. Rather, successful perform- ance on the national political stage is an indication that the nominee has the valuable character trait of practical wisdom and judgment that we seek in judges.

A somewhat less important reason for thinking that national political experience should be regarded as an asset in a judicial nominee is the sense of reality that people with such experience can bring to constitutional adjudication. To the extent that Supreme Court justices are developing doctrine aimed at ensuring that the American people are gov- erned as well as we can be within constitutional limits, knowing how government actually works may be a valuable asset. The usual example given to support this point is that someone sensitive to the realities of the national legislative process would not dismiss legislative history as a guide to interpreting statutes. Another example might be that of Justice Byron White, the Court's most articulate defender of the proposition that sepa- ration-of-powers questions should be resolved with an appreciation of the way in which members of Congress and members of the executive branch are engaged in long-term interactions. Justice White based this understanding of the Constitution on his experi- ence as Deputy Attorney General.

I think it is indeed important that the Supreme Court, as an institution, have access to this sense of the realities of governing. One problem, however, is that those realities change, and a person appointed in one era might not understand the new realities. Jus- tice Black, for example, clearly knew what Congress was like in the late 1930s, but he served through the 1960s, by which time the realities of the legislative process had changed dramatically. He could, and did, contribute his sense of the realities of gov- ernance to the Court in the 1940s, but his ability to make such a contribution dissipated over time. This consideration suggests to me that Senators should be concerned that they be presented, with some regularity, nominees with substantial national political experience. A long run of nominees without such experience is, I think, likely to impair the quality of constitutional law.

Finally, in conversations about the contributions people with substantial political expe- rience can make to constitutional adjudication, sometimes I have heard politicians dis- paraged as people who are good at the art of compromise, but, for that reason, not well suited for developing constitutional principles. Designing a statute that accommodates competing interests, it is thought, is quite different from articulating a constitutional principle to regulate some general area like free speech. In the main, I agree with this position, although I think it fails to appreciate the extent to which politicians themselves act on principle. Still, I think it worth noting that the art of compromise is not foreign to the Supreme Court. As with statutes, judicial opinions contain language whose terms are sometimes negotiated among the justices, as the inspection of the papers of various justices at the Library of Congress reveals. A person adept of explaining to a recalci- trant colleague why a change in language is desirable and need not impair what the col- league thinks important serves a valuable function on the Court. To the extent that peo- ple with substantial political experience bring such talents to the job, all the better. But, of course, those talents are not unique to people with such experience, so the ability to work out compromises over doctrinal formulations is the least important asset people with substantial national political experience bring to the Court.

I should be clear that neither my snapshots nor my normative argument establish that we should have only people with substantial national political experience on the courts. For example, having some grasp of the realities of government is useful, but so is having some grasp of the realities of business, and having some grasp of the realities of the criminal justice system, and so on. Different nominees bring different experiences to the courts, and what seems desirable is having a decent mix of people, among whom are some with substantial political experience.

To summarize: Historically, it has been thought important that some significant number of Supreme Court justices have substantial experience in national politics. And there are good reasons, based on what I think is the best understanding of what we seek in con- stitutional adjudication, supporting that judgment. In particular, judges with such expe- rience are likely to bring a sense of reality to constitutional adjudication, and, more im- portant, practical wisdom as well.

Appointment of U.S. Federal Judges

More on Appointment of U.S. Federal Judges

Legal Issues, Lawyers, & America's Judiciary

Dr. Mark Tushnet is Carmack Waterhouse Professor of Constitutional Law at the Georgetown University Law Center. The foregoing commentary was presented by Dr. Tushnet, on September 4, 2001, in testimony before the Subcommittee on the Courts, United States Senate Committee on the Judiciary.

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Dr. Almon Leroy Way, Jr., Editor

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