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POLITICAL PULSE

Court Remains A World Apart

It used to be common for presidents to pick political figures with practical experience to serve on the Supreme Court.

by William Schneider

Saturday, May 9, 2009


Supreme Court nominations often trigger ideological showdowns. But that probably will not be the case when President Obama names his choice to succeed the retiring David Souter.

Obama was suitably ambiguous last October when he said during the final presidential debate, "I would not provide a litmus test, but I am somebody who believes Roe versus Wade was rightly decided."

Confirming another moderately liberal justice like Souter would mean little change on the Court. Conservatives felt betrayed by Souter, who was appointed by President George H.W. Bush in 1990. "You're basically going to replace one liberal with another," said Sen. Lindsey Graham, R-S.C., a senior member of the Judiciary Committee. Moreover, although conservatives may object to Obama's nominee, they are unlikely to have enough Senate votes to block confirmation.

But Obama faces other pressures besides ideology. One is diversity. "We need somebody who's got the heart, the empathy to recognize what it's like to be a young teenage mom ... to understand what [it's] like to be poor or African-American or gay or disabled or old," Obama said during the campaign.

Presidents have been facing pressure for years to appoint the nine-member Court's first Hispanic, or the current Court's second African-American, because many blacks feel that their views are not well represented by the conservative Clarence Thomas. Last month, Justice Ruth Bader Ginsburg told a college audience that it has been lonely being the only woman on the Supreme Court since Sandra Day O'Connor's retirement. She noted that women bring life experiences to the Court that are different from those of men. A female nominee seems especially likely because the last three justices confirmed were white men. (President George W. Bush nominated then-White House Counsel Harriet Miers to succeed O'Connor, but she withdrew.)

Candidate Obama also talked about the importance of empathy. "If we can find people who have life experience and they understand what it means to ... have the system not work for them, that's the kind of person I want on the Supreme Court," he said during a Democratic primary debate in 2007. The president emphasized life experience again last week when he told reporters, "I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook. It is also about how our laws affect the daily realities of people's lives."

It is not necessary to be a judge or a legal scholar to serve on the Supreme Court. Sen. Patrick Leahy, D-Vt., now chairman of the Judiciary Committee, said in 2005 when O'Connor announced her retirement, "I've talked with a number of current justices. I know they see a number of benefits that could come from having somebody from outside the judicial monastery."

People enter monasteries to cut themselves off from the world. Right now, every justice on the Supreme Court served as a judge on a lower federal court. Not one of them was ever elected to office. Of the 110 justices who have served on the Supreme Court, 41 had no prior judicial experience. Nearly one-third had been elected to Congress.

It used to be common for presidents to pick political figures with practical, real-world experience to sit on the Court. That was true of three chief justices, all of whom served with distinction. William Howard Taft, who was on the Court from 1921 to 1930, had been president. His successor, Charles Evans Hughes (1930-1941), had been governor of New York and had run for president in 1916. Earl Warren (1953-1969) was elected governor of California three times and was a candidate for vice president in 1948.

Sen. Arlen Specter, D-Pa., a former Judiciary Committee chairman, remarked in 2005, "When we had Brown versus Board [the 1954 landmark school desegregation case] ... there were three ex-U.S. senators and one ex-governor, Earl Warren, and you had some broader experience."

If Supreme Court justices were less removed from the world, they might avoid making foolish decisions, such as the one in May 1997 that allowed Paula Jones's sexual harassment lawsuit against President Clinton to go forward. The Court ruled, unanimously, that the burden on the president's time and energy -- "a mere byproduct of such review" -- could not be considered "onerous." With that, the justices signaled they knew absolutely nothing about the real world of politics.

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"Political Pulse" is Bill Schneider's take on politics and public opinion.


billschneider@turner.com

Previously in Political Pulse

  • Opening Acts (05/02/2009)
  • Taking The Long View On The Recovery (04/25/2009)
  • Tough Luck For Big Business (04/18/2009)
  • GOP Enters Spring Training Looking For A Closer (04/11/2009)
  • Ramping Up (04/04/2009)

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