Guest post: Picking the next Supreme Court Justice
What characteristics should Obama be looking for?
On April 9th 2010, John Paul Stevens, Associate Justice of the Supreme Court of the United States, penned a letter addressed to President Barack Obama. In it, the oldest member of America’s highest judicial body announced his imminent retirement, paving the way for the current White House resident’s second SCOTUS nomination in as many years.
The question of who Obama should choose to present before the Senate to take up the vacant position has already generated a hot debate, and it seems that two key tensions underscore much of what has been said on the matter.
The first tension is between partisanship and the principle of wisdom. It is common for presidents to nominate candidates that broadly share their values. Indeed, the current ‘conservative’ composition of the Supreme Court owes much to the fact that six of its nine members were recommended by Republican presidents (although it’s worth noting that Stevens himself –regarded as a liberal voice– is one of them, nominated by President Gerald Ford). On the face of it, one might contend that so long as both Democrats and Republicans partake in this ongoing tug-of-war, there appears to be some degree of fairness involved.
But the Chicago Tribune’s Steve Chapman has a different take. He argues that the president should take into consideration the internal dynamics of the Supreme Court and favor a candidate whose views would sharply and contrast with those of the conservative majority. Chapman thus calls for the nomination of a radical liberal such as Geoffrey Stone. Interestingly, he concludes his article with the following words:
Would I want nine justices like these? Heavens, no. Nor five, for that matter. But one would go a long way to make the Supreme Court smarter, more open to interpretations that are true as well as new, and, most important, wiser.
The assumption Chapman seems to be making is that introducing judges representing stronger strands of conservative and liberal thought enriches the debate through sharper contrast. And the richer the debate, the better for democracy.
Now, it isn’t obvious that this holds. Even admitting that a broader ideological spectrum would make the court open to new interpretations, it does not follow that a majority could more easily be formed in defense of such interpretations. Equally, Chapman’s idea may simply be a recipe for a more polarized Supreme Court, in which there is insufficient common ground between judges for any productive discussion to take place.
Yet there is still a nugget of truth in the idea that avoiding a blindly partisan approach to nominations and taking into account the existing rapport de force within the court is more likely to be conducive to healthier, more diverse and democratic deliberations among judges and perhaps wiser outcomes.
But that conclusion has a sting in its tail. And here’s why: going back to the two tensions I mentioned earlier, the second of those is well captured by the following post on The Economist’s Lexington Blog:
When a prospective judge-for-life’s legislative tendencies become an issue what that should tell you first and foremost is that your democratic system is broken.
Legislation without representation is a fundamental assault on the soul of democracy, particularly when the offenders are appointed for life and thus permanently beyond all democratic checks and balances.
On the one hand, prominent political philosophers like Ronald Dworkin have claimed that judicial review serves as an indispensable safeguard for our rights. Without it, the argument runs, our most basic liberties would be at risk from liberticidal popular majorities, enthused and misled by demagogic leaders. On the other hand, as this post demonstrates, many regard interferences by non-elected judges in the democratic process as an unacceptable infringement on the principle of popular sovereignty.
And the twist is this: if we accept –without necessarily fully endorsing it– that there is something to the latter concern, that judicial review can in principle be problematic from a democratic point of view, then surely this runs counter to our earlier intuition that a president should at least sometimes be non-partisan in his selection of nominees for the Supreme Court.
If primary democratic legitimacy rests in the hands of the elected officials of the White House and Congress rather than in those of judges, then surely the best policy for a president (understood as the representative of the people’s voice) would be to make entirely partisan nominations, so as to impose his – and the people’s– will on the very fabric and texture of the court and thereby infuse a measure of legitimacy into an otherwise undemocratic institution. The question then becomes whether this would yield better or worse deliberative outcomes within the court itself.