Much Ado About Nothing: SCOTUS Qualifications Edition

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By James Bowden

It appears that the most consistent comment regarding President Obama’s nomination of Elena Kagan to the United States Supreme Court is the fact that she has never before been a judge.  So what?

To highlight how urgent a concern this is, the runner-up issue in the headlines seems to be the fact that Kagan’s confirmation would mark an end to the unbroken streak of at least one Protestant holding a seat on the high court.  The more informed commentators are pointing out that until recently, being a judge was not considered a necessary qualification for office space at One First Street, but generally no one is pointing out how pivotal non-judges have been during their tenures as Supreme Court Justices.

In the interest of justice, here‘s a list of three non-judges who have nonetheless said what the law is from the bench of the Supreme Court:

  1. Chief Justice Earl Warren: formerly the Governor of California, Earl Warren ran straight from his nomination by Ike Eisenhower headlong into the issue of segregation.  The result: Brown v. Board of Education.  The rest is history.
     
  2. Associate Justice Robert Jackson: Jackson may not have worn a robe prior to his stint on the court, but he had some serious legal firepower on his resume. Sure, plenty of people have been the Attorney General, but how many of them prosecuted Nazi war criminals at Nuremburg?   
     
  3. Chief Justice John Marshall: that’s right, the most renowned justice of them all.  Where federalism was a ephemeral theory before, Chief Justice John Marshall gave it substance (e.g. McCulloch v. Maryland).  Where the role of the court was in question, he pointed out not a little bit forcefully that the role of the court is to say what the law is.  Need an illustration of how important this decision is to the Court and the nation today?  How about illustrations of William Marbury and James Madison – despite never serving on the Court, portraits of the litigants in the case cementing the Judiciary as a co-equal branch of the federal government grace either side of the Supreme Court’s private dining hall.

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Permalink | Comments (3) | May 11, 2010 09:26

The Stevens Seat - A Legacy of a Century's Struggle?

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By James Bowden

As we’ve noted, the seat on the Supreme Court that Justice John Paul Stevens will vacate this summer is notable for the longevity of its occupants over the last 100 years (give or take).  But Justice Stevens, like Justices Douglas and Brandeis before him, is notable for more than just the length of his tenure.  All three were capable and influential voices on the court – and at times their jurisprudence stirred up more than a little bit of controversy.

Justice Brandeis was an ardent and powerful supporter of the right to privacy and freedom of speech on the Court.  His successful career in private practice featured aggressive advocacy, often offered pro-bono, against abuses by large corporations and business interests, which gained him fame as “The People’s Lawyer” and, “A Robin Hood of the Law,” not to mention significant opposition to his confirmation as a Justice.  Justice McReynolds (rabid anti-Semite and general crank that he was) refused to speak to Brandeis throughout his tenure on the court, and supposedly walked out of the room whenever Brandeis spoke.

Justice Douglas was by reputation one of the most brilliant justices ever to serve on the Court, and wrote many influential opinions supporting civil liberties and environmentalism, some of which he is rumored to have drafted on the backs of napkins over a beer.  His position as the liberal lion of the court and a tenacious advocate for an expansive interpretation of the First Amendment, not to mention his writing for Playboy Magazine and his fourth marriage to a college-age cocktail waitress, provided the ammunition his opponents in Congress needed to mount an eventually unsuccessful impeachment attempt.

Justice Stevens, a moderate Midwestern Republican and son of a wealthy family, was nominated by a Republican President.  Despite this and although his judicial temperament is best described as incrementalist, Stevens has come to be recognized as the leader of the court’s liberal wing, and has written vociferous dissents highly critical of the Court’s current conservative majority, most notably in the case of Citizens United v. FEC, 558 U.S. ___ (2010).  However, despite his conservative critics, Justice Stevens apparently did not disappoint the President who nominated him; speaking of his legacy soon before his death in 2005, President Ford said of Stevens, “I am prepared to allow history’s judgment of my term in office to rest (if necessary, exclusively) on my nomination thirty years ago of John Paul Stevens to the U.S. Supreme Court.”  That is without a doubt one of the highest compliments I’ve ever heard paid.

Stevens’ seat provides a unique view of history.  Over the past 96 years, a collection of people who would fit comfortably in a subcompact car presided from that seat over the growth of a country from a new insurgent on the world scene to preeminence as a world superpower, through the trials and triumphs of modern age and beyond. Their decisions and judicial careers were frequently reflections of the turbulent world outside the doors at One First Street.  Justice Stevens’ successor has quite an act to follow, but I wouldn’t be worried about having an opportunity to leave a mark – the seat he or she will take has a good track record for providing plenty of sound and fury to keep the long voyage exciting.

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Permalink | Comments (1) | April 19, 2010 08:32

Note to Justice Stevens’ Successor: Get Comfortable

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peeps

So speculation is in full swing on Justice John Paul Stevens' replacement this summer.  Our advice to the eventual nominee? Plan to stay a while. Stevens took William O. Douglas's seat; Douglas was appointed by President Roosevelt more than two years before the U.S. entered the Second World War, and is the record holder for longest tenure on the court at 36 years and 209 days.  Stevens' tenure,  at 34 years and 124 days, makes him the fourth longest serving Justice.  The difference between Justice Stevens and the second-longest serving Supreme Court Justice (Stephen Johnson Field): 80 days. 

William O. Douglas took the seat from Louis Brandeis, whom was the first Jewish Supreme Court Justice and was nominated by President Wilson before the U.S. entered the First World War; Brandeis served on the court with the legendary Oliver Wendell Holmes Jr., a veteran of the Civil War and the oldest person to serve on the Supreme Court (Justice Stevens holds the honor of the second-oldest serving Justice).  Between these three men no other justice has occupied the seat since 1916.  One thing is clear, the next nominee needs to be ready for a long stay on the bench if they want to fill the large footprints that they are following. 

Justice Sandra Day O’Connor, a contemporary who never knew a day on the court without having  Stevens as a colleague,  is rumored to have kept a pillow in her office chair reading “Sometimes In Error, But Never In Doubt.” The pillow in the seat vacated by Justice Stevens should probably say, “Whether Or Not In Error, In For The Long Haul.” It should probably be a very comfortable pillow, too.

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Permalink | Comments (1) | April 13, 2010 11:30

So You Want to be a Supreme Court Justice?

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By Brian Malcom  

Judge Sotomayor's nomination to the Supreme Court brings up an interesting topic: How does one become a Supreme Court Justice?  There really is only one way to find out, and that is to look to the backgrounds of the justices of the past, present and possibly future. In the interest of current events, we will begin with the Honorable Sonia Sotomayor. 

Things that helped her nomination: 

1.  According to ATL, Obama "picked Judge Sotomayor based on three factors:     (a) her overall level of intellectual capacity and legal acumen, reflected in her academic record, her work as a lawyer, and her judicial service;     (b) her approach to judging, including her legal craftsmanship and her ability to win over colleagues on the Second Circuit; and     (c) her compelling personal story . . . ."  

2.  Being a woman. “It sends the wrong signal to have only one woman among the nine justices[.]”  - Senate Judiciary Committee Chairman Sen. Patrick Leahy (D-Vt.)  

3.   Empathy.  According to CNN, Judge Sotomayor said that the gender and ethnicity of judges affect their judicial decision making, at a 2001 U.C. Berkley symposium.  

4.  A Democratic Congress.  If the Democrats had less of a majority or no majority at all, Judge Sotomayor would face a much more difficult confirmation process than she likely will face in the coming months. 

5.  A recently-weakened GOP presence on the Senate Judiciary Committee. 

6.   Being the first Hispanic nominated to the High Court. How can the Republicans run the political gauntlet of voting AGAINST a female, hispanic, well-educated federal judge?  Answer:  they cannot.

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Permalink | Comments (2) | May 28, 2009 14:21