Keep the Court clean!
Ryan Coates
August 21, 2009
Article III of the Constitution outlines the Supreme Court vaguely, stating that ´The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.´ It fails to mention any required qualifications to hold office, but appointments over the last half century have almost exclusively been judges and almost always have been federal judges from the appellate circuits. The retirement of Associate Justice David Souter robbed the Court of any experience as a trial judge, all have served on the appeals circuit, whilst a couple, Chief Justice Roberts and Associate Justice Ginsburg have some litigation experience. A trial judge brings more subjective experience than a federal judge, as those on federal benches are more objective, issuing broader opinions which affect more than one case.
Obama´s first opening on the Court was recognised by most Court analysts as a chance to break the mould and appoint a non-jurist to the bench. The argument was that with an almost filibuster proof Senate, Obama could appoint whoever he desired, even if they had no judicial experience or legal qualifications. It is worth noting that most members of Congress have law degrees, meaning that there is nothing preventing a President from selecting a Senator or Representative, as they are likely to have reasonable legal experience and as a member of a party, are also likely to share views aligned with the President. The President is not prevented from appointing members of their cabinet, so many question, why not appoint someone from the Justice Department, such as the Attorney General or Solicitor General?
There are several examples of Presidents considering Congress members for the Supreme Court. Richard Nixon considered Senator Howard Baker for the Court in 1972, but instead appointed William Rehnquist, who at the time, was a Deputy Attorney General in the Nixon Administration. Other Senators recently considered for the Court include Republicans Orrin Hatch and Jon Kyl and Democrats Joe Lieberman and George Mitchell.
Imagine that preceding Presidents had appointed politicians with definitive party affiliations and guaranteed political stances on issues such as abortion and gun control. If a case came before the Court on a potentially political issue, voting on the case could be predicted. The Supreme Court would become similar to the legislative and executive branches of government in that it would be blatantly dominated by party politics. The respect for the institution would be lost for a considerable period of time.
Imagine that Bush v Gore had come before a Court of politicians. Imagine that there were five Democrats and four Republicans and the Court ruled in favour of Gore. Republicans would be outraged and the Court would be seen by the public as openly acting with a political motive. The country would have been in even more turmoil had the Court been so politically biased.
Appointing politicians would also lead to possible conflicts of interest. A former Senator, Representative or Governor would have regular contact with Congress, the President and their respective state politicians and the image of independence gained by the judiciary would cease to exist. The current Court members are completely isolated from politics, and some say society, but they decide each case without the additional bias of politics, as most of the justices are ideologues of some variation, whether they be originalists, constructionists or living constitutionalists. Adding the bias provided by a political party affiliation would benefit political causes, tarnish the reputation of the judiciary and have severe legal implications upon society.
I believe the recent trend of appointing federal judges have been well considered by Presidents as nominees have proven judicial experience, are less politically motivated than politicians and are more capable of achieving ´Equal Justice Under Law´ than anyone else. Whilst some will also argue that considering laypeople for the Court would be beneficial, as it would achieve Obama´s desire of social ´empathy´, they would lack the knowledge required to apply law and their opinion writing is likely to be shoddy in comparison to federal judges.
I would like to congratulate President Obama upon continuing this trend with his first Supreme Court nominee, Sonia Sotomayor, a judge with considerable experience having served upon the Court of Appeals for the Second Circuit since 1998. Sotomayor brings the required experience and judicial integrity to the Court, making a first class appointment to the Court which I expect will be confirmed by the Senate. Though she would never have been nominated by a Republican and her views will undoubtedly clash with conservatives, the scenario is much better than if Obama had selected a Democratic Senator to fill Souter´s seat. For that we should be grateful.
Finally, I want to appeal to the future holders of the Oval Office, do not appoint politicians to the Court. The Supreme Court has a wonderful reputation and is the most independent and arguably most trusted political branch in the United States. Federal judges bring unrivalled integrity and judicial knowledge to the bench and I cannot help but visualise a Court with politicians being weaker and susceptible to external involvement. Let´s keep the Court clean.
Obama´s first opening on the Court was recognised by most Court analysts as a chance to break the mould and appoint a non-jurist to the bench. The argument was that with an almost filibuster proof Senate, Obama could appoint whoever he desired, even if they had no judicial experience or legal qualifications. It is worth noting that most members of Congress have law degrees, meaning that there is nothing preventing a President from selecting a Senator or Representative, as they are likely to have reasonable legal experience and as a member of a party, are also likely to share views aligned with the President. The President is not prevented from appointing members of their cabinet, so many question, why not appoint someone from the Justice Department, such as the Attorney General or Solicitor General?
There are several examples of Presidents considering Congress members for the Supreme Court. Richard Nixon considered Senator Howard Baker for the Court in 1972, but instead appointed William Rehnquist, who at the time, was a Deputy Attorney General in the Nixon Administration. Other Senators recently considered for the Court include Republicans Orrin Hatch and Jon Kyl and Democrats Joe Lieberman and George Mitchell.
Imagine that preceding Presidents had appointed politicians with definitive party affiliations and guaranteed political stances on issues such as abortion and gun control. If a case came before the Court on a potentially political issue, voting on the case could be predicted. The Supreme Court would become similar to the legislative and executive branches of government in that it would be blatantly dominated by party politics. The respect for the institution would be lost for a considerable period of time.
Imagine that Bush v Gore had come before a Court of politicians. Imagine that there were five Democrats and four Republicans and the Court ruled in favour of Gore. Republicans would be outraged and the Court would be seen by the public as openly acting with a political motive. The country would have been in even more turmoil had the Court been so politically biased.
Appointing politicians would also lead to possible conflicts of interest. A former Senator, Representative or Governor would have regular contact with Congress, the President and their respective state politicians and the image of independence gained by the judiciary would cease to exist. The current Court members are completely isolated from politics, and some say society, but they decide each case without the additional bias of politics, as most of the justices are ideologues of some variation, whether they be originalists, constructionists or living constitutionalists. Adding the bias provided by a political party affiliation would benefit political causes, tarnish the reputation of the judiciary and have severe legal implications upon society.
I believe the recent trend of appointing federal judges have been well considered by Presidents as nominees have proven judicial experience, are less politically motivated than politicians and are more capable of achieving ´Equal Justice Under Law´ than anyone else. Whilst some will also argue that considering laypeople for the Court would be beneficial, as it would achieve Obama´s desire of social ´empathy´, they would lack the knowledge required to apply law and their opinion writing is likely to be shoddy in comparison to federal judges.
I would like to congratulate President Obama upon continuing this trend with his first Supreme Court nominee, Sonia Sotomayor, a judge with considerable experience having served upon the Court of Appeals for the Second Circuit since 1998. Sotomayor brings the required experience and judicial integrity to the Court, making a first class appointment to the Court which I expect will be confirmed by the Senate. Though she would never have been nominated by a Republican and her views will undoubtedly clash with conservatives, the scenario is much better than if Obama had selected a Democratic Senator to fill Souter´s seat. For that we should be grateful.
Finally, I want to appeal to the future holders of the Oval Office, do not appoint politicians to the Court. The Supreme Court has a wonderful reputation and is the most independent and arguably most trusted political branch in the United States. Federal judges bring unrivalled integrity and judicial knowledge to the bench and I cannot help but visualise a Court with politicians being weaker and susceptible to external involvement. Let´s keep the Court clean.
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