The Pathology of Picking Supreme Court Justices

sct1.jpgThe Supreme Court appointment process has become almost pathological . . . ironically, for rational reasons. The incentive is for presidents to select people who are: (1) young, so they have a reign on the Court that rivals Fidel Castro’s in length; and (2) obscure, so they have rarely taken any positions on any major issues. [Sadly, the future prospects for Supreme Court appointments for bloggers are not looking good.]

The nomination of Harriet Miers has left many people guessing. We know very little about her. Mark Graber writes on Balkinization: “What both John Roberts and Harriet Miers have in common is that the administration knows a lot more about them than the rest of us.” Jack Balkin calls her a “stealth candidate.” Orin Kerr is “quite puzzled.”

We should be selecting Supreme Court justices from the most accomplished and distinguished of legal figures. Instead, being a judge for a long time almost disqualifies a person for the Supreme Court.

The Senate confirmation hearings have turned into vapid ritual, where Senators posture and bluster, and the appointee does a well-rehearsed dance to reveal as little as possible. No appointee is going to go before the Senate and say: “Well, yes, Senators, I intend to legislate from the bench. I’ll be activist. I won’t follow the Constitution. Instead, I’ll decide cases based on what I’ve had for breakfast that day. I’ll be biased and I’ll try to twist the law to conform to my personal whims.”

I hope that in the debates that follow about Harriet Miers, the focus will also include the systematic problems with the appointments process more generally.

What can be done?

One thing is a term limit or its functional equivalent. Personally, I think 16 years would be a good limit. That’s four presidential terms. A term limit will at least reduce the incentive to avoid appointing older individuals, who are likely to be more distinguished than younger appointees.

Another potential improvement would be to increase the size of the Court. Each Supreme Court justice would have less of an impact, and a more frequent and regular appointments process would hopefully lower the political stakes of each appointment.

Of course, there is no way to completely fix the problem, but something is terribly wrong with the process as it stands now.

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4 Responses

  1. w. lyle stamps says:

    Good point Mr. Solove; esp. in light of the fact that the WH is very aware that only the Senators have to approve of the nomination.

    Today’s Post has this very telling (and to some insulting) quote:

    While much of the consternation was voiced by social conservatives . . . in the end, White House advisers emphasized, only the Senate gets a vote.

    Perhaps recall presidential elections would also mitigate Presidential arrogance/help re-balance the Court?

  2. Greg Ferguson says:

    The Senate confirmation process would be a lot more satisfying, for Senators on both sides of the isle, if the nominees simply admitted that they have already made up their minds on every conceivable constitutional issue (including all of Senator Biden’s laughable hypos) and then disclosed how they would rule on that issue if it came before them.

    First, what the Senators are asking the nominees to disclose would result in precisely what the American people don’t want on the SCT: impartial judges that have already made up their mind. Second, it is ridiculous to think that any nominee has, in fact, made up her mind on the myriad of possible issues that could come before the Court. The turmoil in the American media, and in the Senate, over the nominees may be a result of the fact that my second assumption is not held by the media pundits, nor the Senators. It is precisely because both sides of the political spectrum suspect that the other side is deceptively concocting opinions behind closed doors, and making promises on how they will interpret the constitution. Thus, all of the President’s nominees have no paper trial, while at the same time the President assures his constituents on national TV that “she will not change in the next 20 years.” Change from what, Mr. President. I guess the American people will have to wait till her opinions are written to discover what she won’t be changing from. Now, I doubt that the nominee has already made up her mind on all constitutional issues, and I doubt even further that if she had made up her mind, the President knows every detail. But, comments like these, and the right wing pundits screaming for a nominee that they can be sure already made up her mind on core constitutional questions does not instill confidence that the best nominees possible are being sent to the Court. Rather, it gives the impression that political ideologues are being selected.

  3. Spencer says:

    Great blog!! For another view, see “Will Harriet Miers care about Black people?” on blackprof at

  4. Craig Green says:

    i certainly agree with some of Dan’s points about the confirmation process. But i can’t agree that now’s the time to expand the frame of discussion beyond our current business, i.e., Harriet Miers. We’ll all _have_ to debate about her if she gets on the Court. But the only potentially useful time for such debates is now (and throughout the hearings).

    In that spirit, and to support worthy bloggers, here’re my own several cents. Despite sensationalism, one has to ask, i think, “If Harriet Myers is confirmed, will she be the least credentialed Justice this century?” And before being hasty, we should check with Clare Cushman’s resource, The Supreme Court Justices 1789-1993.

    “Perhaps Fortas, that corruptible crony?” A Yale Law grad, editor-in-chief, and professor; bureaucrat of the New Deal (jobs at the AAA, SEC, and PWA, and Interior); Supreme Court advocate, including Gideon v. Wainwright. Not an altogether good person, and not a truly burnished pre-Court record. But we’ll have to look onward to match Miers.

    “Despite offending the dead, Rehnquist?” Not bad. On the other hand, first in his class at Stanford law (with a PoliSci masters to boot), a Jackson clerk, and three-year leader of OLC (which is sometimes, if only sometimes, appreciably more “legal” than WHC). Maybe lightly credentials, but not Miers-ian in my estimation.

    “Thomas?” That’s your call. Yale law grad, assistant secretary in Education, EEOC director, eighteen months on the DC Cir. Light? Yes. Equally light? Hmmm. A benchmark standard for new hires? That’s a no.

    The only others even close are _maybe_ John H. Clark’s appointment in 1916, and Pierce Butler’s appointment in 1923. But who knows/cares about those guys anyway.

    There have been nearly fifty appointments since 1900. The legal field has certainly grown — definitely in numbers and perhaps also in esteem. But Miers is the best person to be found? Really? Welllllll, perhaps we’ll see. But forgive some their doubts.

    Credentials aren’t everything. Super-credentialed judges are sometimes stinkers, and the opposite’s also true. But for some of us Court fans, the neighborhood between “trust us” and “fingers crossed” can be a very tough place to live.

    Back to Dan’s comment, i think it’s important that Roberts, Breyer, and Ginsburg are all _easily_ defensible picks (ex ante) in the “court” of history. Thus, the process is at least not irretrievably flawed — despite being pretty unattractive in its details.

    But again what about Miers? Are the Dems quiet just hoping for a female Souter? Are they drying powder for “The Big One”? (And as a side note, who wouldn’t love to hear more candidates for Least Credentialed Justice This Century — or ever?)