Fixing Justice

Eleanor Holmes Norton | Gary Hart | Nina Totenberg | Michael Wolff | Jim Newton
Page Two

Congresswoman Eleanor Holmes Norton
Rep. District of Columbia; professor of law at Georgetown University

Frustrated with decades of change they had unsuccessfully opposed, Republican presidents since Richard Nixon have understood that the power to make lasting, even dramatic or sudden change, is not in the presidency or the Congress, but lies with the Court. The executive and legislative branches seldom offer change that has the breathless quality of the Court's most controversial decisions in June or others that yield gasps and howls during each year. Alas, no Democratic president since FDR has given much priority to Supreme Court nominations. Yet, not only critical constitutional matters but even what the next president or Congress might accomplish could rest on the fiat of a 5-4 Court majority. Not to be melodramatic, but seriously, if the moment hasn't already passed, the next eight years may be the last chance—and it is neither a clear nor a fair chance—to salvage the progressive legislative changes of the 20^th century and the most important work of the Court itself. Ronald Reagan and George W. Bush promised to lead a counter revolution. They failed, but their agents, their judicial picks, are succeeding.

Sen. Gary Hart
Fmr. Senator, Colorado; Author, The Courage of Our Convictions: A Manifesto for Democrats

quote In an ideal world, the next, and future, Supreme Court appointee(s) should be someone with an intellectual grasp of Constitutional law and principles, who has written, either through law journals or lower court opinions, knowledgably and insightfully on the complexities of those principles, and who also has a real-world, practical grasp of the impact of high court opinions in the marketplace and everyday life. Given the rigidness of current ideological orthodoxy and political pressures from single-issue constituencies, it is probably too much to ask that appointments to the Supreme Court not be made simply to satisfy ideologues and interest groups.

Nina Totenberg
Legal Affairs Correspondent, NPR.

The next president can avoid a huge fight over his or her nominee by actually consulting senators from the other party and picking someone of stellar credentials but who is not a "thumb in the eye" to the opposition party. I would give this advice squared if the opposition party controls the Senate.

quote We have come to view judicial experience as the sina qua non for a nominee, but that is a pretty recent development —a development that President Reagan took to new levels because of his desire to avoid "surprises." But a professional judiciary, as it were, is not what the framers really had in mind. And if you look at some of the greatest Justices of our history, many did not come from the bench. They brought incredibly diverse but different experiences to their new task. Brandeis as a public interest lawyer. Frankfurter as a professor and consultant for causes and presidents. Warren as Governor and state Attorney General. Jackson as U.S. Attorney General and Solicitor General.

It seems to me that a President McCain, for instance, would have a tougher time in his selection that would a President Clinton or Obama. McCain has made a lot of promises to the conservative base that if he delivered on, would be hard to swallow for a Democratic Senate, and the ensuing battle would eat up a lot of political capital. A President Obama or Clinton, if careful, on the other hand, should be able to name acceptable and qualified candidates in much the way that President Bill Clinton did.

Finally, there is the matter of gender, ethnicity, and race. All I can say is that the next nominee better be a woman, or there will be a political price to pay. Better yet if she is a Hispanic woman.

Justice Michael Wolff
Supreme Court of Missouri

quote The President should consider demographics, in particular: Hispanics: it's about time, isn't it? Women: we can have more than one woman justice, can't we?

The President should consider personal qualities to balance the Court by filling in what the current bench seems to have in short supply. The President can approach this task by considering the following questions:

Is the candidate smart, but not too smart? One must be very smart to be a justice of the Supreme Court of the United States. But think of the downside: some of the current justices are so smart that they can readily find distinctions between precedent and current cases that mere mortals cannot discern. Or, more thrillingly, some can imagine what the 200-years-dead founders really could have meant, making intervening precedent irrelevant.
Has the candidate ever tried an actual lawsuit? It would be helpful to add a justice (or two) who has actually tried lawsuits ... to juries, even. The current Court has a surplus of appellate lawyers and law professors who have seldom or never dirtied their hands in the trial of factual issues. Not that there's anything wrong with law professors, as such, of course.
Does the candidate respect state courts? This does not necessarily mean experience as a state court judge, but extensive experience in state courts would be helpful (See No. 2, above.) There was implied disrespect in Bush v. Gore, but most state judges are over it, I hope. But a certain disrespect can be inferred from Republican Party of Minnesota v. White, a First Amendment case that loosens restrictions on what candidates may say while campaigning for judicial office. The underlying theory seems to be that if the Supreme Court helps make state judicial campaigns truly awful, the states will see the error of their ways and stop choosing judges by elections. Sure. But, on the plus side, I do enjoy the tributes to the Missouri plan when judicial selection is discussed.
Does the candidate believe that where there is a right, there is a remedy? Although the basis of this question is rooted in common law, and thus may seem more fitting for state courts than federal courts, it has come to include the salutary and increasingly rare belief that a powerless individual may triumph over the powerful when the law requires. A co-occurring belief, with origins in the Magna Carta, is that the courthouse door should be open to such individuals.

If these questions do not seem right, perhaps the President should just nominate a friend, and let it go at that. Assuming, of course, that the President has a friend like FDR's friend Robert Jackson.

Jim Newton
Editorial Page Editor, Los Angeles Times; Author, Justice for All: Earl Warren and the Nation He Made

As the next president searches for a justice, he or she would do well to start far away from the bench.

quote It has become the pattern in recent years to search for justices exclusively among professional judges, generally in the federal appellate courts. That's a natural concession to the politics of confirmation—federal judges have records that are easily scoured for ideological purity, and they've already been confirmed at least once. But the result has been a narrowing of the Supreme Court's range of experience and an increasing irrelevance of the court in the larger field of national government. Today, not a single sitting justice came to bench with any experience in elected political office (Sandra Day O'Connor was the last justice to have come to her position with that in her background).

The Court's blinders were firmly in place as recently as the last day of last term. Ruling in a pair of affirmative action school cases (Parents v. Seattle and Meredith v. Jefferson), the Court limited—or appeared to limit—the discretion that school administrators have to develop voluntary plans to integrate students of different races. Much attention was focused on the unhelpful split of the justices in that case, which resulted in a 4-4-1 vote that deprived school administrators of any concrete guidance about how to implement the Court's affirmative action directions. In both cases, the justices rejected the plans before them, but those who sought to squelch all racial remediation were thwarted by Justice Anthony Kennedy. The conservative justices argued that any consideration of race was intolerable, but Kennedy, while giving them their fifth vote to strike the programs before them, denied them a majority for the proposition that no remedies that considered race would ever be acceptable. The standard for Constitutional approval for affirmative in schools now appears to be whatever satisfies Justice Kennedy.

That's bad enough, but less remarked upon was the strong sense that in this area, the Court today is hampered by justices who seem not to live in the real world. In the lives of students and teachers, parents and working people, the quest to find thoughtful ways for children of different races to know one another—to play on the same playgrounds, to read the same books, to recognize and appreciate their differences—is a daily campaign. Schools seek benign solutions, knowing that all students will grow up better if they have friends of different races. Administrators know that housing patterns are such that if they do nothing, schools re-segregate; students suffer, and society eventually does as well.

So, without prodding from courts, administrators create magnet schools and tweak education calendars. They fiddle with diversity, not to deny spots to white kids but to create racial mixing. Most parents welcome it. Most students learn from it. Schools end up better preparing children for life in a culturally diverse society.

That makes sense to everyone but judges. To Chief Justice John Roberts, an undeniably wise and articulate leader of today's Court, the subtlety of race mixing in real-life is easily reduced to legal absolutism: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," he wrote in the school cases.

Roberts pretended that his decision honored the tradition of Brown v. Board of Education. He had to because few decisions are more beyond reproach than Brown. No justice—few people of any stripe—today dare to challenge Brown's rejection of separate-but-equal and its command to integrate America's public schools. What Roberts discarded, however, is not so much the legal reasoning of Brown as the common sense of it. Compare Roberts' absolutism to this from the original Brown: "Today [education] is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms."

There are many reasons for the Court's disengagement from real-life today, but one is its heavy reliance on judges. Brown was the work of Justices who brought genuine intellectual diversity to the Court. Its author, Earl Warren, came from the governorship of California. His most important colleagues on that unanimous decision came from all walks of political and intellectual leadership: William O. Douglas, former head of the SEC; Hugo Black, drawn from the U.S. Senate; Robert Jackson, former U.S. Attorney General; Felix Frankfurter, Constitutional scholar from Harvard law school. Those legal giants elevated the Supreme Court, gave it dignity and significance, made it a force for constructive social change at a time when the other branches of government were paralyzed by structural impediments. Rarely have five greater intellects served together on the Supreme Court. Not one of them was picked from the bench.

None of this is to say that the appellate benches aren't full of qualified and thoughtful candidates. Kim Wardlaw and Ray Fisher of the 9th Circuit come to mind, as do many other good judges. But the academy and the state houses, the Congress and the public interest law firms are full of talent as well. The next president should start there and hope to diversify the Court with an appointee who knows the difference between legalism and life.