Might we want presidential candidates to pledge not to appoint federal circuit judges to SCOTUS?
Long-time readers know of my various complaints about the lack of professional diversity for appointments to the US Supreme Court, and so I found especially intriguing this notable new Bloomberg Law commentary by Philip Allen Lacovara headlined “Judicial Nomination Process Leads to a Supreme Court of Nobodies.” I recommend the piece in full, and it covers a lot more than just the modern presidential trend to select SCOTUS nominees only from among a few dozen (younger) federal circuit judges. The commentary got me to thinking about what I might really like to see from any presidential candidates inclined to put out short lists, which the question in title of this post reflects. Here are a few excerpts from the piece:
Gallup polls during the Warren court years indicated that, despite intense controversy over some decisions, about 60% of the public regarded the court’s performance as “good” or “fair,” but only 20% as “poor.”
By contrast, polls over the last several years consistently track a dramatic decline in public confidence in the court and the way the court decides cases. According to a recent survey by the Annenberg Public Policy Center at the University of Pennsylvania, barely 40% of Americans believe that Supreme Court justices “are more likely to set aside their personal and political beliefs to make rulings based on the Constitution, the law, and the facts.”
The slide in public confidence in the court can be reversed, but first its causes must be understood. The intensity of the public’s current disdain reflects, in part, a steady decline in regard for the stature of the individual members of the court, who for the last few decades have been chosen from the ranks of faceless and doctrinaire judicial careerists rather than diverse lawyers and public officials of recognized stature and practical wisdom….
During the first 180 years of our nation’s history, which ended with the retirement of Chief Justice Warren, a total of 96 lawyers were appointed to the Supreme Court, all but ten of whom had earned public recognition through service as US senators, congressman, members of the cabinet, heads of important government agencies, as state governors, legislators, or judges. One, William Howard Taft, was a former president.
Those few who had not served in high public office had, for the most part, distinguished themselves in other public endeavors and included such distinguished private practitioners as Louis D. Brandeis and Thurgood Marshall….
By contrast, it is doubtful that anyone outside the legal community had ever heard of John Roberts or any other present member of the court before their nominations.
This recent pattern of elevating careerist federal appellate judges is especially egregious, since virtually all of the judges recently promoted to the Supreme Court left the rough and tumble of the practical world and went on the bench when they were relatively young, well before they had the opportunity to accumulate the life experiences that are normally associated with wisdom and insight….
I am not suggesting that any current member of the court is unqualified. Each possesses intellect and technical legal acumen, and some of them add a diversity that was sadly missing from the court over its first 180 years. The problem with today’s court is that we have mistaken academic intelligence for the kind of necessary wisdom formed through a long career of varied and distinguished experiences.
Because of a fundamental change in the criteria and process for selecting candidates in the last few decades, these men and women have come to the current court with no public stature that would entitle them to the benefit of the doubt when they issue controversial rulings. Without that kind of demonstrable pedigree of independent, personal distinction, the public has been unfortunately comfortable assuming that decisions with which they disagree are tainted by abject political loyalty to the president who appointed them.