Hillary Clinton, never one to miss an opportunity to pander, told a prospective Iowa voter that he had “a great idea,” in suggesting she appoint Obama to the Supreme Court.

It’s a terrible idea, and that has nothing to do with how I feel about Obama’s presidency, his character, or his qualifications for the job.

My friend Ed Brayton, who blogs at Dispatches from the Culture Wars, noted on Facebook that “Obama’s record on civil liberties and in cases before the Supreme Court is pretty terrible. I would have no faith in him as a justice.” He has been bad on civil liberties, but sometimes people change their perspective when they’re in a different position (c.f., Earl Warren). I’m not positive Obama would be a horrible civil liberties justice (although I’d be happier with the appointment of someone with a better track record, for sure).

Others might worry that Obama is too much of a leftist, because apparently there are people who still believe that. I don’t find that a serious concern. More pointedly, some might note that he doesn’t have any judicial experience, and that having been a part-time teacher of constitutional law isn’t the most impressive resume for a SCOTUS appointee. But of course it’s a fairly recent tradition that all appointees must have lengthy judicial experience, and one that appears to me to be largely driven by the American Bar Association’s inappropriate assumption of the role or arbiter of qualifications for a public office (and we worry about the Koch brothers!). Personally, I I think there are umpteen thousand Americans who are qualified for the job, and presidents’ talk about selecting “the best” person is 100% FDA Prime bullshit. And a little less technical lawyering and a little more understanding of the Constitution as more than a legal document–I’m looking at you, Tony Scals–wold be good.

But my overriding concern is the growth of presidential power. And one of the factors promoting that has been a Supreme Court that has been less eager to check presidents, and that–according to political scientists Matt Crenson and Ben Ginsberg in their book Presidential Power: Unchecked and Unbalanced–is at least in part because more and more Supreme Court justices have extensive background in the executive branch, rather than gaining experience elsewhere. They become enculterated in the concerns and needs of the executive, and more willing to give presidents some leeway, rather than trying to keep them in check.

Presumably, presidents have always appointed judges whom they found politically congenial. What has changed is that preisdnets no longer choose judicial appointees with legislative backgrounds, and the political milieu in which judges originate presumably affects their institutional affinities and sympathies. During the nineteenth century, federal judges typically emerged from the country’s electoral and representative systems. …

The fact that many federal judges had served, continued to serve, and often would serve again as legislators helped to reinforce legislative primacy by ensuring that the federal bench would hvae a certain respect and partiality for legislative institutions. …

Judicial deference to legislative power has practically disappeared today …

What has changed in recent decades is the character of judges’ political and governmental experience. Few recent or contemporary federal judges have ever served in a legislative body, but many have served in executive agencies or in federal or state judicial institutions…Today’s judges are recruited primarily from executive and judicial positions, not from legislatures. [pp.305-314]

Crenson and Ginsberg have a table showing the decline of federal judges with judicial experience from a high of almost 81% in 1830, to 38% in 1900–around the time presidential power began its upward trend–to 4% in 20005. We need fewer judges with executive backgrounds, not more, and certainly not one so deeply steeped in sympathy for the office of the presidency itself.

LBJ adviser George Reedy, in The Twilight of the Presidency regretted that the President has become so sheltered that there is no one to tell him “go soak your head” How likely is it that a Justice Obama would tell future presidents–not just a President Hillary Clinton, but a President Rubio, Cruz or Trump, too–to go soak their head?


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11 Responses to A Non-partisan Argument Against Justice Obama

  1. Burt Likko says:

    I’m not sure I buy the thesis of this argument, Professor.

    Let us stipulate that, particularly if one is politically on the left side of the contemporary political continuum, the great civil liberties heroes of the last three or four generations of Supreme Court Justices are Earl Warren, William Brennan, Thurgood Marshall, and Ruth Bader Ginsburg. Maybe also Harry Blackmun for authoring Roe, although that would be a pretty shallow reason for inclusion IMO.

    Chief Justice Warren’s principal background was in an executive position, as Governor of California. He was politically a reasonable choice to be POTUS himself at one point and was actually nominated to be Thomas Dewey’s running mate in 1948. He also had significant private practice and prosecutorial experience prior to his nomination to SCOTUS, which was a product of a very different mindset about the court and partisanship than prevails today.

    William Brennan’s principal background was in private practice; he served with some distinction as an Army lawyer during the war and had been a trial judge for two years and a justice of the Supreme Court of New Jersey before moving on to SCOTUS.

    Thurgood Marshall’s career as the NAACP’s principal litigator marks him permanently as one of the truly great lawyers to ever practice in the history of this country. He served on the Second Circuit for five years, was Solicitor General for two.

    Ruth Bader Ginsburg’s principal career was in private and public interest practice and that remains where she really made the mark that distinguished her for elevation to the high court. Unlike that of Brennan and Marshall, she had a robust pre-SCOTUS judicial career, with thirteen years on the D.C. Circuit.

    None of these great lions of civil liberties had any legislative experience whatsoever. Warren is the only one who even comes close: for one year, early in his career, he served as a clerk to the Judiciary Committee of the California Assembly.

    There’s a question-beg going on, too. The idea that we will be more free if the Court defers to Congress more than it does the President seems very mistaken. Congress tramples upon civil liberties with aplomb when it is popular to do so, and as it turns out it is often popular to trample upon the civil liberties of disfavored minorities. Warren himself gave in to the allure of so doing; the great stain on his career was his role as the moving force behind the Japanese internment (though he did later change his mind and George Wallace-like, apologized for this awful misstep). Maybe we will be more democratic if Congress is given a freer hand — but democracy is not necessarily equal to liberty, particularly if you are among the minority.

    So I see no reason to prefer a Supreme Court defers more to Congress than to the President. I want neither. I want a Court that defers to neither, skeptically examining governmental claims to valid power and vigilantly safeguarding individual autonomy against intrusion. And the very best judicial sentinels of individual rights do not seem to have legislative backgrounds at all.

    • jhanley says:

      Good points that I think largely arise from my not getting detailed enough.

      Crenson and Ginsberg aren’t saying that having largely a judicial background is bad. Rather, it’s more neutral with respect to legislative-executive conflicts, with such justices not being deeply steeped in either of those other branches. Their emphasis is really on the decline in frequency of judges with backgrounds in the legislative branch and increase in judges with backgrounds in the executive branch. The neutral element remains neutral while the others shift.

      Warren may be the bit counterfactual, of course. But I’m not talking specifically about civil rights and liberties, and off the top of my head I’m not sure about the Warren Court and presidential power (and I’m working on a lecture on the Manhattan Project, so I can’t look right now).

      Also, Crenson and Ginsberg, and I, are not arguing the Court should be deferential to Congress when exercising judicial review. The point is more that in legislative-executive conflicts, as well as other exercises of executive power, we want to ensure the Court is not overly deferential to the executive branch. It’s certainly possible for the Court to be overly deferential to the legislative branch in such cases, too, but at present that’s not really the pressing issue.

  2. Burt Likko says:

    Let me add another thought: the last Justice I can think of who had significant legislative service on her resume was Sandra Day O’Connor. Particularly if you are on the left side of the contemporary political spectrum, you likely retrospectively view her as a “good” Justice and if you are on the right side of today’s spectrum, you view her as one of President Reagan’s missteps. But during the time of her service she was viewed as a moderate, who leaned conservative rather than liberal. It’s only by comparing her to those who came to serve after her that she looks like a liberal. And I say, she wasn’t really all that liberal at all.

    Now, I consider Justice O’Connor one of my heroes, but this is not because I think she was a steadfast champion of civil liberties and individual freedom. It’s because I think she embraced and embodied the role of the Supreme Court as the place where competing good interests get balance against each other the best. I’ve not done a survey of her entire jurisprudence, but I’m willing to bet that she voted to defer to governmental clams to power, whether legislative or executive, between half to two-thirds of the time. When she voted to resist governmental power, she almost invariably did so by way of application of sliding scales of competing interests. I personally like that a lot: governmental power is often exercised with a good intent, aimed at achieving a good end, and it is, after all, appropriate in a democratic system of government to presumptively defer to the majority’s wishes.

    I posit that O’Connor’s political background of making majoritarian appeals to the public to gain election, and then compromising and logrolling to legislate, trained her well in finding balance points for outcomes that would be broadly acceptable to people of different factions. In that sense, her gray record on civil liberties accurately reflected the mood of the American people as a whole: they didn’t want to see cops abusing people, for instance, but they did want to see cops empowered to apprehend and imprison criminals. And I further posit that when there is a good argument by the democratic majority to exercise governmental power in a particular way, that will typically (though not always) be something that deserves consideration and some deference. But also some resistance. So O’Connor’s judicial embrace of the balancing test, moving careful from case to case and digging deeply into the facts and circumstances of each, seems to be to be the quintessence of the judicial function.

    That’s why I admire her so, even though I do not always agree with her votes and rulings in particular cases and I would hesitate to call her a champion of individual rights. Rather, I admire her because she did the job of judging as best it has been done by anyone within my living memory.

    And for purposes of this post, she’s the most recent specimen available of a Justice who had any significant legislative experience whatsoever. Other than her, I’m at something of a loss to come up with a single Justice who served in the post-WWII era with significant legislative experience at all.

    • jhanley says:

      I don’t know of any on the Supreme Court, either. Just to clarify, that 4% number is the entire federal judiciary, and I doubt I could name more than a handful of sub-SCOTUS federal judges. 😉

      Nice analysis of O’Connor.

  3. Winging It says:

    I doubt he would want the position anyway. He stands to make millions from speaking fees and book sales like Bill Clinton has done. Becoming a Justice would make that very difficult for him.

  4. Michael Cain says:

    …because more and more Supreme Court justices have extensive background in the executive branch, rather than gaining experience elsewhere.

    From a somewhat different tack, we are down to two justices who had meaningful adult-life experience outside of the NE urban corridor before their appointments (Kennedy, Thomas). Only one of those elevated from a position outside of the corridor (Kennedy, from the Ninth Circuit). Maybe I’m a nut to think that it matters. It may well be the only topic on which Justice Thomas and I agree.

    Lots of people were surprised by Kennedy’s vote in Arizona v. Arizona. In hindsight, they probably shouldn’t have been. As a Ninth Circuit boy, he almost certainly has more experience with lawsuits related to citizen initiatives than the rest of the Court combined.

    • jhanley says:

      I’m in agreement. The Court needs a diversity of perspectives, and that includes regional ones.

      It’s a big heterogeneous country we live in.

  5. Peter says:

    William Howard Taft is the only former president to have served on the Supreme Court. It was perhaps not the best of ideas, as he was senile for much of the time.

  6. Well, Obama has some legislative experience. According to wikipedia, he served in the Illinois senate for 8 years (longer than I had thought) and as you know, he was senator for a couple years, although by then it’s probably fair to say he probably had his sites elsewhere. And I imagine even a few years as president is enough to cancel out a lot of what one learned in the legislature.

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