(Corrects to read ‘black-letter’ in seventh paragraph.)
President Barack Obama’s apparent short list of prospective Supreme Court nominees includes distinguished jurists and respected legal minds. With few possible exceptions, they have never faced a voter for elective office.
This is a huge void on the current Supreme Court, apparent in its decisions and deliberations. Since the retirement of Sandra Day O’Connor in 2006, there hasn’t been a justice who has ever run for political office.
Obama, according to reports, has weighed considerably the ideology, experience and temperament of prospective appointees. He seems to have spent less time thinking about their political acumen. After Justice John Paul Stevens announced his retirement April 9, Obama said his replacement should have “fierce dedication to the rule of law and a keen understanding of how the law affects the lives of ordinary people.”
Sitting on an appellate court or attending Federalist Society seminars or Harvard Law School faculty luncheons isn’t the best training for understanding how ordinary Americans are affected by decisions. The “judicial monastery,” as the Democratic chairman of the Senate Judiciary Committee, Patrick Leahy of Vermont, calls it, produces impressive intellectuals of different persuasions; fewer, however, possess a real feel for average folks.
No one understands this better than Abner J. Mikva, whose combined political and judicial credentials are unsurpassed. He’s a former member of the Illinois legislature and U.S. Congress, was a judge on the U.S. Court of Appeals for 15 years, rising to chief judge, and later counsel to President Bill Clinton.
He’s been one of Obama’s mentors, though he’s not involved in this selection process.
“The issues that come before the Supreme Court often are more about policy than law,” Mikva says. “They are not black- letter issues; we need people who can weigh in on what the pluses and minus are on the people’s lives, what the consequences are.”
An ideal choice, Mikva believes, would be Secretary of State Hillary Clinton, with whom he clashed during the Clinton administration.
“She could keep Scalia on edge and work with others to get the necessary votes,” Mikva says, referring to Antonin Scalia, the dominant conservative justice.
Clinton, Granholm, Napolitano
The White House has said Secretary Clinton isn’t under consideration. A slightly elongated list of candidates includes two politicians: Michigan Governor Jennifer Granholm and Homeland Security Secretary and former Arizona Governor Janet Napolitano.
It’s the current court that is out of sync with Supreme Court history; the high court has often been populated with seasoned politicians. Chief Justice John Marshall was a member of the Virginia House of Burgesses and the U.S. House of Representatives; William Howard Taft, after he was president, became chief justice, and President Dwight D. Eisenhower appointed as chief justice, Earl Warren, a California governor and former Republican vice-presidential candidate.
Two of the more notable decisions in the 220-year history of the Supreme Court, Brown v. Board of Education in 1954 and Roe v. Wade in 1973, underscore the value of a political perspective on the bench.
‘Separate but Equal’
The Brown case, before the Warren court, was about overturning the “separate but equal” law of the land that endorsed school segregation that was hardly equal for blacks. Large parts of the country were segregated; the court faced a political and policy choice of epic proportions.
After the oral arguments, the justices voted; it was five to four for overturning “separate but equal.” Rather than accept that split vote, Chief Justice Warren sensed the importance of a unified court on this wrenching issue. With his political skills he began to work the four dissenters. On May 27, 1954, the Supreme Court, by a nine-to-zero vote, outlawed officially sanctioned school segregation.
Of the nine members of that court, there were three former U.S. senators, a mayor, a member of the state legislature, district attorneys, as well as Warren, the ex-governor. There was only one former appellate court judge. Politicians understood the sensitivity of the Warren message for the country in ways that some of today’s justices likely wouldn’t.
Despite the furor Brown v. Board caused it set America on a historic political process. A contrast is the 1973 abortion decision; however well-intended, for three-and-a-half decades it has generated bitter divisiveness and no consensus.
“For all the good Roe has done it has been a political disaster,” says Mikva, who unabashedly supports abortion rights. “Nobody on that court was aware of the consequences; it was a policy decision that probably would have been made by many state legislatures.”
There are a plethora of issues facing the Supreme Court these days that have a decidedly political factor: voting rights and redistricting, campaign-finance laws, the legislative intent of Congress, gay rights, affirmative action and, of course, the recently enacted health-care overhaul. All these questions are as much societal and political as they are legal.
One of the great speeches Obama gave was at the start of the last presidential campaign, in Selma, Alabama, at Brown Chapel. It is captured in David Remnick’s brilliant new biography of Obama, “The Bridge.” The young candidate reminded civil-rights veterans that day that he was standing on the shoulders of those advocates and activists who went before him.
As the former law school professor, now president, weighs his choices for the Supreme Court vacancy, he would do well to think back on that speech. And to remember that some of those courageous pioneers at Selma stood on the shoulders of that 1954 Supreme Court decision made by a bunch of politicians.
(Albert R. Hunt is the executive editor for Washington at Bloomberg News. The opinions expressed are his own.)
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