Judicial qualifications and the modern political calculus

As Jordy Singer points out in Experiential diversity on the Supreme Court is a pipe dream — at least for now, his response to my recent post, “[i]n states in with nominating commissions, conscientious governors, and reasonable judicial turnover,” the kind of careful judicial selection practiced in Massachusetts and Colorado “is possible. But it doesn’t work that way in most states, and certainly not at the federal level.”

I don’t disagree with this assessment. One difference, though, is that, while it doesn’t work in most states as it does in Massachusetts or Colorado due to the state’s constitutional or statutory design, the process of judicial selection at the federal level—at least, at the level of the Supreme Court—is almost purely a matter of choice. Indeed, it is most often a matter of political choice. And while, realistically, the qualifications of potential Supreme Court justices may not be changing any time soon, we should not give up on the normative arguments for such change. This is not to suggest that the politics will eventually become less important in the selection of Supreme Court justices, but that, within the realm of political choice, Presidents and Senate majorities might one day think beyond the limited qualifications that today’s nominees uniformly possess—qualifications essentially defined by pedigree.

Singer notes the incentives for the President “to nominate a sitting judge with sterling credentials,” which deters the opposition from “play[ing] games with the confirmation of such a highly qualified candidate.” His cites as an example Harriet Miers, President George W. Bush’s original choice to replace retiring associate justice Sandra Day O’Connor in 2005. Miers was White House Counsel; her prior experience included many years as a corporate lawyer in a large firm, and she served as the head of both the Dallas Bar Association and the State Bar of Texas, as well as chair of the Texas Lottery Commission and as an elected member of the Dallas City Council—a record of accomplishment and service of which any lawyer would rightly be proud, and a record of experience that might reasonably be thought to inform many issues that might come before the U.S. Supreme Court in areas such as municipal law, the practice of law, civil procedure, and the regulation of lawyers.

On the other hand, Miers never served as a judge in any state or federal court, or taught as a law school professor, or litigated constitutional cases before any court, much less the U.S. Supreme Court. Oh, and she earned her law degree at Southern Methodist University. But the absence of typically elite credentials did not fuel Democratic opposition to her nomination; rather, that opposition came from within, as pressure from Republicans within and without the Senate ultimately resulted in the withdrawal of her candidacy. At least one conservative commentator put a fine point on her nomination: “The Supreme Court is an elite institution,” Charles Krauthammer wrote. “It is not one of the ‘popular’ branches of government.”

Interestingly, what was known at the time of Miers’s views on many of the issues of most concern to a Republican President suggests she would have consistently voted with majorities to curtail the right to choose, embrace the right to bear arms, and respect state sovereignty. Indeed, it is far from clear how many cases would have turned out very differently had she, and not O’Connor’s eventual successor, Samuel Alito, made it to the Court.

The elitism that contributed to the downfall of the Miers nomination was not the result of any constitutional or statutory rule. It simply reflected a modern political calculation, one that has hardened into an expectation. Any President—or Senate Judiciary Committee—could insist that it be changed. And change may come, should political majorities coalesce around the belief that the lives and experiences of Supreme Court justices should not be so distant from those of most American lawyers—or, indeed, most Americans—as to cast a shadow on the legitimacy of judicial decision-making that affects every one of us.

Experiential diversity on the Supreme Court is a pipe dream — at least for now

Lawrence Friedman’s recent post lays out a compelling case for achieving educational and experiential diversity on the Supreme Court. He looks to the states for guidance, noting that courts of last resort at the state level frequently feature highly qualified justices who graduated from a wide range of law schools and who feature an extensive variety of practice experience.

It’s a tantalizing analogy, which works well in some states but doesn’t translate to the federal level. Still, there are glimmers of hope for more experiential diversity in future iterations of the Supreme Court. More below. Continue reading “Experiential diversity on the Supreme Court is a pipe dream — at least for now”

Educational and experiential diversity on the federal bench

A guest post by Lawrence Friedman

As recently noted in the Interdependent Third Branch, the novel coronavirus has caused the U.S. Supreme Court to close its doors to the public until further notice. Several of the justices fall into the category of persons most vulnerable to the disease: Stephen Breyer is 81 years old; Ruth Bader Ginsburg will be 87 next week; and Clarence Thomas is 71. Three other justices are in their sixties: Samuel Alito is 69, while both the chief justice, John Roberts, and Sonia Sotomayor are 65.

The list is a reminder of how gray the Court has become—and that the potential for multiple appointments is going to be a significant campaign issue in November. One aspect of that issue is the lack of diversity on the Court, which reflects the lack of diversity in the federal judiciary. A February report by the American Constitution Society put it bluntly: “judges who sit on the federal bench are overwhelmingly white and male.” In addition to gender and race, moreover, most judges at the highest levels of the federal system share another characteristic: they all attended a very small number of elite law schools. As the New York Times recently noted, most of President Donald Trump’s judicial appointees “have elite credentials, with nearly half having trained as lawyers at Harvard, Stanford, the University of Chicago or Yale.”

Consider the members of the Supreme Court. Four justices hold law degrees from Yale Law School, four from Harvard Law School and one – Ginsburg – started at Harvard and finished at Columbia Law School. Eight served as judges on federal appeals courts, while one – Kagan – served previously as solicitor general and, before that, dean of Harvard Law School. Just one –Sotomayor – served as a federal district court judge. Three served at one time as full-time law professors—Breyer and Kagan at Harvard, Ginsburg at Columbia.

Or, consider the members of the junior varsity Supreme Court, the U.S. Court of Appeals for the District of Columbia Circuit. Of the eleven judges not on senior status, five graduated from Harvard, two each from the law schools at the Universities of Virginia and Chicago, and one each from Stanford University and the University of North Carolina Chapel Hill. Only two served as district court judges prior to being elevated to the Appeals Court.

Twenty judges total and, among them, they represent just seven law schools, with almost half just one, Harvard. Only three, moreover, know what it is like to oversee civil and criminal litigation on the ground, to hear motions to suppress and make evidentiary rulings at trial.

This lack of intellectual and experiential diversity is not new. Observing, a decade ago, that Sotomayor would add diversity to the supreme court in respect to ethnicity, gender and economic origins, Renée Landers and I nonetheless concluded that selecting nominees from within a narrow range of qualifications defined by pedigree effectively deprives the public of judges “who may see the world and the legal issues it presents in ways that are different and more helpful than those [judges] whose views on the law were shaped by essentially the same educational and professional experiences.”

The American Constitution Society is right: “Courts should look like the people they represent,” which I take to mean the citizens the federal judiciary serves. But such diversity should not be limited to gender and race or ethnicity. Rather, on the nation’s highest federal courts, it should encompass the varied educational and practical experiences available in a profession that produces countless lawyers who have not served as either federal appellate judges or law school professors.

As in other areas of the law, presidents and senators could look to the states for other approaches. Just as state courts have been leaders in exploring the breadth and depth of constitutional commitments to individual rights and liberties through their own constitutions, so too have appointing authorities in many states valued diverse educational and practical experiences in selecting judges for their high courts. Of the justices of the Massachusetts Supreme Judicial Court, for example, three attended Harvard and one Chicago, while two attended Suffolk University School of Law and one Boston University Law School. Five sat earlier in their careers on the state’s trial court.

Elite law schools and federal appellate judges have no monopoly on teaching legal reasoning or applying it, respectively. It stands to reason that lawyers trained to consider the practical implications of doctrinal changes and how such changes may affect the parties before them are likely to have a different appreciation for the consequences of appellate decisionmaking. This is not to suggest that these judges make better decisions—just that, to the extent each of us is shaped by our experiences, the high courts on which these judges sit are likely to benefit from the perspectives they bring to bear on the resolution of disputes over statutory and constitutional meaning. It is important, as the American Constitution Society and others maintain, that judges look like the people they serve. It should also be important that they reflect the ways in which most American lawyers appreciate both the law and the role judges play in defining it.

This post is the first of a larger exchange on Supreme Court qualifications and the nominating process. For Jordy Singer’s response, click here. For Lawrence Friedman’s reply, click here.

In LA, changing your name to “Judge Mike” won’t get you elected to the bench

Los Angeles County held its judicial primaries on March 3, and one candidate took an unusual approach to attracting voters.

Candidates must list their current (or most recent) occupation in the ballot. Mike Cummins, a retired attorney, had briefly served as a judge in a smaller county in the early 2000s, but was no longer eligible to list his occupation as a judge. So he legally changed his name to Judge Mike Cummins.

The voters were not fooled. Cummins lost overwhelmingly to his opponent, Deputy DA Emily Cole.

And for those who were following the judicial hopes of former child actor Troy Slaten, alas, he too lost handily in his LA County primary this week.

On reforming the Supreme Court

Russell Wheeler at the Brookings Institution has taken a detailed look at the various proposals to reform the composition of the U.S. Supreme Court, from court-packing to term limits. He provides a short history of each proposal (including potential legal stumbling blocks). Most importantly, he determines that at this time, the American public has no real taste for Supreme Court reform — the most significant stumbling block for any court proposal.

Wheeler concludes:

That reasonable people are even debating these proposals speaks to the degradation of the federal judicial appointment process at all levels, a decline that has been building steam for several decades. The once near-ministerial task of appointing and confirming federal judges has stretched from one or two months into sometimes year-long ordeals, even for non-controversial nominees.

Both parties have undermined the guard rails that that once pushed presidents and senators to seek judicial candidates within some broad mainstream of ideological boundaries, even allowing for occasional outliers. Democrats killed the filibuster for most nominees, and Republicans finished it off for Supreme Court candidates and, to boot, ended the home-state senator (of either party) veto of circuit nominees that Republican senators exploited relentlessly to block Obama administration appointees.

Pack-the-court proposals that would normally seem bizarre are understandable in today’s partisan climate. If the federal judiciary becomes a 21st century version of the 1930s judiciary that thwarted a popular push for change, they may even become necessary.

I don’t think we are anywhere near that level, despite the hysteria created by left-leaning partisans and academics. While Republican presidents have appointed more Justices, and while the justices serve longer, on average, than they ever did before, the leftward policy drift of many Republican appointees over time tends to keep the Court much more balanced than it might seem at the time of a Justice’s confirmation.

The battle over the Court is, in my mind, partially a spillover from the current partisan battles in the other branches and partially a reaction to the Republican Party’s successful focus on judicial appointments since the Reagan administration. When bipartisanship in Congress has eroded as badly as it has, it seems inevitable that both parties will seek to punish each other to the extent they can in the realm of judicial nominations. And the undeniable success of Republican administrations in populating the federal courts over the past forty years has left Democrats in a state of agitation, bordering on desperation.

I do not know if and when some sense of bipartisan responsibility and decorum will return to Congress. But until then, radical proposals to reform the Court are likely to constitute ongoing collateral damage.

Iowa gets new Chief Justice

The Supreme Court of Iowa has selected Justice Susan Christensen to be its next Chief Justice. She will take over duties from Acting Chief Justice David Wiggins, who is set to retire from the court in mid-March. Wiggins stepped into the interim role after the sudden death of Chief Justice Mark Cady last November.

Christensen will administer to and preside over a five-member court that has been radically remade in the last few years. Governor Kim Reynolds has already appointed three members of the court since 2017, and the Wiggins retirement will provide an opportunity to appoint a fourth justice.

Still more embarrassment for the “Chicago Way” of choosing judges

Over the past three years, his blog has tracked the litany of shocking stories coming out of Chicago area judicial elections — shocking, that is, for anywhere except Cook County. There, it seems, the sulfurous mix of identity politics, voter ignorance, and unscrupulous candidates is a way of life.

This week, the Chicago Sun-Times and Injustice Watch added another depressing data point: “sham” judicial candidates who are placed on the ballot simply to confuse voters and throw the election. Here’s how it is alleged to work: when it appears that a candidate preferred by the city’s Democratic establishment is at risk of losing a judicial race, one or more “sham” candidates will enter the race and be added to the ballot. The “sham” candidates are not real, in the sense that they expend no money on the campaign, conduct no campaign events (and often barely have a campaign website), and don’t seem sincerely interested in a judicial post. But these “sham” candidates do have something in common: names that appeal to voters’ identity politics (which is Chicago, translates mostly to feminine -sounding first names and Irish surnames). The expectation is that voters, who have done no research on the judicial candidates on the ballot, will simply vote for those who sound like Irish-American women. (And there is proof that this expectation plays out in real life.) The “sham” candidates confuse enough voters to draw votes away from the non-establishment candidate, allowing the establishment candidate to prevail.

It’s doesn’t always work. The article, for example, relates how the presence of alleged “sham” candidate Bonnie McGrath in 2016 was not enough to prevent the victory of non-establishment candidate Carol Gallagher. And the alleged “sham” candidates have protested that despite their utter lack of campaign activity, their desire to be judges is sincere. But let’s be honest: the entire process is still shameful — or at least it should be, if the party bosses behind this ruse were capable of shame.