A Type of Justice

Judicial experience and Supreme Court nominations

In 2005, President George W. Bush selected John G. Roberts and Samuel A. Alito to serve as the 109th and 110th justices on the U.S. Supreme Court. Roberts’ confirmation went relatively smoothly, while Alito’s, in the wake of the aborted nomination of Harriet Miers, White House Counsel and the president’s long-time associate, saw stormier hearings in the Senate. In both cases, the men answered questions about their most recent job experience: sitting on a U.S. Court of Appeals. This prior judicial experience gave the nominees something in common with the wide ideological spectrum of justices they would join; like Roberts and Alito, every other sitting Supreme Court justice had served on a lower court prior to nomination.
While this fact may not at first seem surprising, only 50 of the 110 justices ever appointed have come from the ranks of sitting judges. Past justices have included cabinet secretaries, politicians, and life-long scholars. Despite the election of President Obama, who has hinted at an interest in unconventional judges, this trend towards Supreme Court nominees with judicial experience seems unlikely to change. The preference of presidents, senators, and interest groups for predictable justices and the greater ease with which lower-court judges, compared to politicians and academics, can hide their normative views from the public eye, will continue to make prior judicial experience a highly valued qualification.
Predictability is Primary
The desire for predictable nominees begins with the president. As Ryan J. Owens, an assistant professor of government at Harvard University, told the HPR, presidents “want to avoid uncertainty with their nominations, in so far as whether or not the nominees will be confirmed and what type of decisions they’ll make on the Court. You can minimize that uncertainty with current federal circuit court judges.” Appeals court judges hear similar cases as Supreme Court justices, albeit without the same breadth of interpretive power, and therefore give the president some sense of how they might rule. Even if the president has private reasons to believe he knows the judicial philosophy of the nominee, such as President Bush may have had regarding Harriet Miers, a pick without judicial experience risks failure in the Senate. Because senators feel thwarted in their “advice and consent” role by the existence of any private understanding to which they are not privy between the president and the nominee, the mere perception that someone is a “stealth candidate” could sink the nomination.
Justices without a judicial record, the conventional wisdom goes, might turn out very differently than expected. Indeed, New York Times columnist Anthony Lewis, winner of the 1963 Pulitzer Prize for his coverage of the Supreme Court, cited the unpredictability of non-judge nominees as an argument for choosing them in an interview with the HPR. “My kind of judge,” he said, “is an unpredictable judge. I’d like a Supreme Court that isn’t perfectly predictable, where judges make decisions based on what they think is right rather than strict ideology.” The increased preference for lower-court judges as Supreme Court nominees due to their predictability, he argued, is sub-optimal because “the job is not just to narrowly interpret statutes. It’s terribly important to have people who have run for office and who have gained wisdom from other life experience. They understand the public more than a lot of judges who may have spent all their adult life in law school or on the bench.” Non-judicial life experience, Lewis argued, shapes justices’ decisions in important ways that even they cannot anticipate.
Todd Gaziano, Director of the Center for Legal and Judicial Studies at the Heritage Foundation, a conservative Washington think-tank, takes the opposite position. “The Supreme Court is too important to take a stab at,” he said to the HPR. In his view, “the work of a Supreme Court justice has become more specialized as more of our life has become constitutionalized.” People without judicial experience, he asserted, are simply not qualified to tackle the job. Not only that, but, “senators, for example, make uniformly horrible justices. They don’t really do law, so we don’t know what they’re going to do.” In other words, Gaziano contended, former politicians bring their political beliefs to the Court and lack a coherent legal philosophy to assess during the confirmation process.
In terms of predictability of legal philosophy, however, even scrutiny of the nominee’s prior judicial record does not provide absolute insurance against a surprise. Justice David H. Souter, for example, was nominated by President George H.W. Bush in 1990. Based on his record on New Hampshire’s Supreme Court, Republicans expected Souter to be a reliably conservative judge, but he instead joined the Court’s more liberal wing. His case highlights a major advantage of nominees who have spent significant time on the bench: they leave a more opaque paper trail than most other candidates.
No Room for Normativity
This advantage, counterintuitive at first, stems from the fact that legal decisions in lower courts rarely make normative arguments. Particularly on appellate courts, they mostly require the application of pre-existing precedent, set by the Supreme Court. A judge can therefore ground each decision in the specifics of the case and the language of the law, rather than making the broader arguments of Constitutional intent inherent in a Supreme Court decision. A nominee with prior judicial experience can therefore insist, when a senator tries to extrapolate the judge’s broader view from a particular decision, that he or she merely applied a technical understanding of the law, not any deep-seated legal belief. This defense allows the nominees to differentiate their past activities as subordinate decision-makers from their future roles on the Supreme Court as free interpretive agents. Politicians, in contrast, have a lifetime of votes to indicate their normative positions. And legal academics, another potential pool of justices, also “have a tendency to take positions that could be used against them” according to Owens. Gaziano concurred, noting that academic articles on abstract principles like religious freedom or privacy have the potential to undermine a confirmation hearing.
Regardless of the relative merits of academic or political Supreme Court candidates, the trend of selecting justices with prior judicial experience seems unlikely to reverse anytime soon. In the meantime, attempts to expand the judicial pool to include more political practitioners and academics may be channeled towards the appellate courts, for which the stakes are lower and confirmation hearings garner less public attention. This strategy could lead to a slow shift in the makeup of the federal courts, and eventually in the Supreme Court itself. Whether such a development would mark a return to a proud tradition or a regression from an improved set of norms depends, as does so much else, on one’s attitude towards America’s highest court.