Perhaps I'm just in a grumpy mood but I was somewhat taken aback by the Chief Justice's statements as reported in the New York Times's Sidebar – Judging the Merits of a Supreme Court Drawn Only From the Judiciary.
For the first time in its history, every member of the United States Supreme Court is a former federal appeals court judge. Chief Justice John G. Roberts Jr., in a lively and surprising talk a couple of weeks ago, said that development might be a good thing.
Even the Times found that too much to swallow.
But there are reasons to question the chief justice’s conclusions.
The political scientists who study such things say there is no empirical support for the notion that former judges are more apt to feel constrained by earlier rulings or to suppress their political views. “Former appellate court judges are no more likely to follow precedent or to put aside their policy preferences than are justices lacking judicial experience,” according to a study to be published soon in the University of Pennsylvania Law Review.
It seems to me that this (empirically unsupported) claim that appellate judges are “less political” (and thus, presumably, “better”) is a remarkably partisan remark coming from the Chief Justice when it does. Who are the youngish appellate judges who might be appointed to the Supreme Court today? Why, it just happens that at present they just happen to be … wait for it … pretty much entirely a group of very-conservative to ultra-conservative appointees put on the bench by George W. Bush. Were President Obama to have to make an appointment in the near term, and were his goal to be to appoint a youngish non-conservative, the intersection of that set with sitting judges on the Courts of Appeal is approximately zero.
It is hard to see how this convenient fact could have been lost on someone as smart as the Chief Justice. In which case, I find a not-very-hidden agenda in his remarks: that of giving aid and comfort to any GOP attempt to block a non-judicial liberal from being put on the Court. And believe me, that's very much on the mind of the right-wing establishment. I would like to be wrong about this; I had hoped for better from him.
Very interesting… but it seems a tad delusional to have hoped for more from a Bush nominee, no?
1. Thank you for sharing. The Penn law-review article referenced therein looks interesting.
2. I didn’t find Chief Justice Roberts’s comments out of place. Even for very smart people, such as law professors, being an appellate judge either on the state or the federal level must be difficult at first. Appointing appellate judges to the Supreme Court makes sense in that they have done that type of work before–interpreting statutes, constitutions, and dealing with an array of facts and cases.
Without having read the Penn law-review article closely, one flaw that I’d point out is its seemingly heavy emphasis on evaluating judges based on their votes cast in favor of overturning precedents or following stare decisis. As I read Chief Justice Roberts’s comments, he mentioned ascertaining which precedents control, not whether they should be followed. In fairness to all, that is a valid point of disagreement among smart people who read the law differently–e.g., the decision whether to follow a precedent or to rule in accordance with what a particular judge regards as the correct reading of the constitution or a statute.
In sum, I question reliance on data when determining who are the persons best qualified for the few slots on the federal courts of appeal. Experience as a federal judge–the qualification that Chief Justice Roberts identifies–seems to me as a good an indication as any.
Earl Warren hadn’t served on a court of appeals… Hugo Black hadn’t either. It’s the person more than the c.v.