Who to the What Now: Obama’s Supreme Court Decision

Since Friday morning I’ve been trying to figure out what can be added to the conversation about the soon-to-be vacant seat on the Supreme Court. Many Court observers noted months ago that Justice Stevens had only hired one clerk instead of the usual four hired by active justices.  So, the Obama administration had some warning that this was probably going to occur.  Additionally, having already developed a list of candidates during the process that ultimately led to Justice Sotomayor’s nomination, the White House has other candidates on a “short list” and experience from having done this before.  What does that mean?  Does the experience of going through this process and nominating a celebrated, female, and Hispanic federal judge give Obama more leverage this time around?

He needs leverage because this nomination process will take place in the shadow of the 2010-midterm Congressional elections.  The pressure of economic recovery, the Right and the healthcare legislation will mean that Senators, of both parties, have less freedom in voting for a judge from another political perspective.  This assumes that without this political context and an upcoming election certain Senators could be persuaded to vote differently.  Unlikely.

Thus, my question becomes whether the American people care how a judge is chosen or simply rely on the media to revel major flaws.  Then, absent any flaws, we’re accepting of whatever hard-working, brilliant jurist is nominated.  If we don’t have strong opinions on who is nominated, do we care how this person is chosen? I am probably not the best barometer on these issues because I’m politically minded and in law school.  So, for me, this remains a huge story.  What about for you?

My gut reaction was to hope that Obama finds some more political courage and goes outside the pool of federal judges to find his nominee.  I don’t have a great reason or some data to prove why this should occur other than I think it’s important to consider diversity.  For once, it’s not racial diversity.  Since the Court has become such a prominent player in social policy, I think the Court would benefit from someone who had a different career path.  Granted, this immediately calls into question whether it’s a good idea to nominate someone for social policy reasons who might be unprepared to handle the other issues that dominate the Court’s time (administrative, regulation, procedure, etc.).

Regardless of that drawback, I cannot shake the feeling that the path to the Supreme Court has become pigeon-holed.  You must attend one of 10ish undergrad institutions, one of 3ish law schools, have worked in a presidential administration or a law firm on the way to the bench, become a federal judge and written strong but safe majority opinions.  There are two major benefits to this.  These individuals write a lot and the President will have a greater understanding of how that person is likely to make decisions on the Supreme Court.  Second, it provides stability.  It used to be that the Senator confirmation process was designed to find a judge that could be approved by both parties.  This kept the candidates from being too extreme.  Now, the need for political comfort and certainty provides that function.  By the time the candidate gets to the Senate confirmation hearing, we already know that their confirmation has been worked out.

I’m not going to argue that controversial nominees to the Court like Reagan’s nomination of Robert Bork are good for the country.  They take valuable time and I suppose could even cause some people to lose trust in the President’s decisions.  On the other hand, these individuals shake up the process and force Presidents, Senators and voters to consider what is most important in our government.

One of the major criticisms of the Bush administration was that there was not a diversity of opinion “at the table.” When making decisions in a room full of people who agree with you, reality can sometimes be distorted.  Obviously this could never happen on the Court because there will always be nominees from various Presidential administrations and often a 5-4 or 6-3 balance in political views.  I am not saying that appointing only federal judges from Ivy League law schools is going to make a bad Supreme Court.  Clearly that’s not been the case.  I’m just saying the Court could still benefit from a differing point of view – law professor, practicing attorney, or government official.  That’s all.  Maybe that’s change for change sake. But maybe not.

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