A reader writes:
I have to take issue with this reader’s dissent, least of all that it portrays an historically inaccurate test for who should sit on the bench. There is a growing consensus in the legal profession/academy on the alarming lack of professional diversity on the Supreme Court at this point in history (Jeffrey Toobin’s "The Nine" addresses this point, among others) . The Roberts Court, in fact, is the rare recent example of a bench composed entirely of circuit court judges. This is not problematic, per se, but it’s hardly an "ideal" (least of all because no ideal exists where the Court is concerned) scenario. Earl Warren, Lewis Powell, and Sandra Day O’Connor hadn’t served a day on the Federal bench (the former two were never even judges) before being nominated to the Court and yet nobody would deign to say, at the time of their nomination, that they had "no claim to the gifts of a Supreme Court Justice" (what these gifts are I’m not aware, as it’s known to be a tremendously isolating and intellectually burdensome position in our political system).
I think Hillary Clinton is, on the surface, qualified to be a Supreme Court justice and I think the same would have been true for Harriet Miers (in the interests of full disclosure, I’m an Obama supporter and believe, of course, that he’s more qualified to sit on the bench than any presidential candidate in recent memory). However, Harriet Miers was a far more problematic nominee than simply not having any Federal bench experience. She was tabla rasa when it came to issues of importance to the social conservatives that would provide the bedrock of support for her nomination. Judges with a proven paper trail are more desirable to this constituency because it gives firm jurisprudential cover to the outcomes they are pursuing (overturning Roe, etc.) that a glorified polemicist like Scalia, or a low-wattage ideologue like Thomas, cannot provide. This is the institutional triumph of The Federalist Society and they’ve worked too hard to let somebody with comparatively shallow bona fides to pass through. Secondly, as White House Counsel under an Administration remarkably averse to judicial review, her nomination raised concerns about impartiality towards limits on Executive Power (her subsequent acts since withdrawing her nomination have been most telling on the degree of loyalty she feels towards President Bush). Lastly, her on-one meetings with the Senate Judiciary Committee were said have to gone poorly. She was said to be very poorly versed in Supreme Court jurisprudence and Spector and Leahy both requested that she do-over her answers to the questionnaire submitted to her by Committee. Hillary Clinton (or any Democratic nominee) raises no such issue as far as outside pressure groups critical to the nomination , or as to the independence of the Court from the Executive Branch. And much as I’m not a fan of her politics, I don’t see her phoning it in on Constitutional jurisprudence. Nobody has ever accused her being dim or detail averse. It’s apples and oranges with a side of red herring. It’s simply not dispositive that she’s never served on the bench, and nor (in my professional opinion) should it.
Another reader adds:
I agree with you completely about the professional model not being the only path to the Supreme Court. For quite some time now, we have had a Supreme Court staffed with people whose experience has been almost exclusively executive and judicial. (Sandra Day O’Connor’s two-plus terms in the Arizona State Senate being the most legislative experience of any recent Justice, I think.) Perhaps as a result, we have a Court that is expansive in its interpretation of executive and judicial powers, and pretty stingy when it comes to legislative power.
Consider the last great Legislator-Jurist: Hugo Black. His resume — University of Alabama Law School, law practice in Birmingham, ten years in the U.S. Senate, then appointed to the Court — is closer to Clinton than it is to Roberts or Alito. Many regard him — rightly, in my view, as one of the great Justices of the twentieth century.
I’m not saying Clinton would be like Black. But your correspondent’s narrow view of what qualifies one to be a Justice is, I think, part of the problem with today’s Court.
