By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She now spends most of her time in India and other parts of Asia researching a book about textile artisans. She also writes regularly about legal, political economy, and regulatory topics for various consulting clients and publications, as well as writes occasional travel pieces for The National.
About a dozen years ago I was sitting in an auditorium in Cape Town listening to a panel discuss constitutional law issues in the new South Africa. One of the panellists, judge Dikgang Moseneke, was particularly impressive and I recall his somewhat unusual background– certainly unusual compared to that of any current justice of the US Supreme Court.
Moseneke joined the Pan-Africanist Congress when he was 14. One year later, he was arrested and subsequently convicted of participating in anti-apartheid activity. He served ten years as a prisoner on Robben Island. While in prison he completed various university degrees and would later earn a law degree. He subsequently pursued a glittering career as a practicing attorney, until his appointment to South Africa’s Constitutional Court– the highest in the land. He served there until his retirement in 2016.
Now I’ve not studied Moseneke’s judicial record in any detail. All I know is his wikipedia entry praises him for his “towering legal mind” and calls him “a most independent-minded and imaginative jurist”. But I remember thinking at the time that serving time as a prisoner would give him a breadth of experience to draw on as a judge that would certainly be impossible in an American context. Our system of judicial selection is well-designed to shut out anyone who has any experience being on the wrong side of the law. Or, for that matter, especially in recent years, with doing anything remotely controversial.
The Flaws of Merrick Garland
I was thinking about Obama’s stalled Supreme Court nomination of Merrick Garland the other day, and that conference in South Africa came to mind. And my memory of that made me realize exactly what I think was so wrong in Obama’s choice of Garland as his nominee for former Justice Antonin Scalia’s old seat– and in fact, in a wider sense, what’s missing from political debates about who should serve on the Court.
Obama often seems to be shadowboxing with himself, and his pathological– and somewhat naive, IMHO insistence on bipartisanship– caused him to stumble badly in making this nomination.
And not that I make that statement, I’m not viewing the appointment through the lens of identity politics that is common for assessing such appointments. When considering Supreme Court justices– all of whom usually share common elements of background and similar experience– we tend to use aspects of identity as a proxy for experience.
Our current Supreme Court membership lacks any of the breadth of experience (not to mention any progressive sensibility) that characterized former members of the Court (with perhaps the exception of Justice Ruth Bader Ginsburg, who successfully litigated several important gender rights cases). But where is our Louis Brandeis– the so-called People’s Lawyer, who pioneered the use of science, and social science, in his “Brandeis brief”, and frequently acted on behalf of progressive legal causes that challenged monopolies and corporations and litigated aspects of workplace safety and pro-labor laws? And how about Thurgood Marshall, who successfully argued many cases key civil rights cases, the most famous being Brown v. Board of Education.
Merrick Garland is obviously intellectually able enough to serve on the Court (but more on that in a moment). He did, after all, graduate at the top of his Harvard College class before moving on to Harvard Law School. But at 63, he’s too old, too bland, too typical of the current mode of US Supreme Court justices, to be an apt choice for the position. Now, by too old, I don’t mean to imply he’s too old intellectually. But Presidents get very few chances to shape the membership of the Supreme Court, and Obama should have opted for someone younger, who would be expected to serve a longer term.
Democrats obviously thought that the failure of the Senate to confirm Garland’s nomination– despite more or less bending over backwards to select a nominee even Republicans could love– would cause outrage on the campaign trail.
Well, guess what, according to Politico, it hasn’t:
From Pennsylvania to New Hampshire to Arizona, Senate Democratic candidates repeatedly hammered Senate Republicans for essentially ignoring Garland’s nomination with a “Do Your Job” message they figured would resonate with swing voters. During well-publicized recess events, activists hounded GOP senators back in their home states.
“I heard almost nothing about it,” said Missouri Sen. Roy Blunt, who is in an unexpectedly tough reelection bid against Democrat Jason Kander. “I saw thousands of people. We did 106 events that involved lots of people and I think in passing, one person mentioned Merrick Garland.”
Obama seemed to be interested in chalking up a win, and didn’t really think through exactly what he would be winning.
If Obama had made a less anodyne choice, he could perhaps have galvanised some element of the Democratic party’s base to press for confirmation. But no one seems ready to agitate for Garland’s confirmation. Voters simply do not seem to care about the empty Supreme Court seat, especially when compared to other ore pressing issues. In the context of a discussion of an ongoing Senate race, GOP strategist Scott Jennings, who ran a super PAC backing McConnell in 2014. said, “The idea that voters were going to make a Supreme Court vacancy a more important issue in a Senate race than say jobs or health care was ludicrous the day it was hatched,” again according to Politico.
What Comes Next
So it looks like the Garland nomination is dead. It’s unlikely to be revived, as he wouldn’t be the ideal first choice of either of the major party candidates; he seems to be a candidate that only Obama could love. Again, I turn to Politico
Chuck Schumer was almost gleeful, exuberant at first because he thought he had a winning issue,” said Mississippi Sen. Roger Wicker, the chairman of the National Republican Senatorial Committee. “I think the American people are comfortable with the idea of allowing the electorate to speak in November about the direction of the court. And that being the case, as a campaign issue, I think it’s a wash.
Here’s something the next President should think about. Despite some differences in gender and ethnic background, Supreme Court justices overwhelmingly share one common characteristic.
There is some diversity in the law schools that members of the current Supreme Court attended. Three Justices attended Yale School (Alito, Sotomayor, Thomas), five Harvard (Breyer, Ginsburg, Kagan, Kennedy, Roberts, although Ginsburg, actually transferred to Columbia her final year, to accompany her husband who was working in New York). That’s it.
This is a remarkable fact– suggesting that the selection process is just not wide-ranging enough. I don’t think there’s any secret password that gets bandied about Harvard Square or New Haven that’s necessary to serve as an effective Supreme Court Justice. And there are plenty of fine law schools across the country, each of which has graduated numerous talented attorneys.
Interestingly, Presidents Richard Nixon and Ronald Reagan, with their strong California connections, were slightly more broad-minded in the law school qualifications they considered in their picks. Although for the most part, Nixon and Reagan chose candidates from Harvard– Powell and Blackmun for Nixon, although he also selected Burger, who attended what was then called St. Paul College of Law– and Kennedy and Scalia for Reagan.
Nixon and Reagan at one point went way out on a limb in selecting two candidates who didn’t attend Harvard or Yale. Rehnquist (Nixon) and O’Connor (Reagan)– both attended Stanford Law School, and as it happened, were members of the same class. Nixon was certainly alive to the class significance of the school one had attended. IIRC, he resented that lack of money prevented him from attending Harvard Law School, to which he had been admitted, and instead went to Duke.
Now, I won’t go so far as Senator Roman Hruska, who once famously defended Nixon’s ultimately unsuccessful Court nominee G. Harrold Carswell, who had been described as mediocre: “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises, Frankfurters and Cardozos.”
As here expressed, this thought has been widely ridiculed. But there’s a kernel of something interesting here. Let me let you in on a little secret: despite its formidable reputation, constitutional law isn’t particularly intellectually difficult. Now note that I said intellectually difficult– the choices the Supreme Court has to make are certainly difficult, often because they involve finely balanced considerations, with merit to both sides of the argument.
To be sure, issues that make it up to review by the Supreme Court involve many areas of the law. But constitutional elements can be properly understood by many, many competent lawyers. Now tax law, that’s hard (at least in the period I attended law school, and worked for a leading white shoe law firm– most lawyers consider tax to be the most intellectually demanding area of the law). And as for other areas of intellectual endeavor– modal logic, anyone, that is downright formidable. There are not many minds capable of making real contributions in that area. But I digress.
My point is a simple one: anyone who tells you that only a few minds are worthy of sitting on the Supreme Court is full of it. There are thousands of lawyers who would make perfectly fine justices, most of whom didn’t attend Harvard or Yale. So why don’t we see any of these people nominated for a seat on the Supreme Court?
Another thing I noticed when I was researching this essay is the very narrow range of religions represented on the current Supreme Court, which certainly don’t reflect the overall breakdown of the country as a whole. Three current members of the Supreme Court are Jewish (Breyer, Ginsburg, Kagan), while five are Roman Catholic (Alito, Kennedy, Roberts, Sotomayor, and Thomas), as was recently deceased Justice Scalia. I’m not in any way suggesting that there should be a religious test for Supreme Court membership– but only that I found the narrow range of religious faith of sitting justices to be an interesting tidbit.
What I’d Like to See Discussed Regarding the Next Supreme Court Pick
The Supreme Court selection process is highly politicized, and it has become the convention that nominees don’t discuss anything substantive during the vetting process. For some who’ve been groomed for the position, this has mean never taking a controversial position on anything throughout a government or academic career– and certainly done nothing so radical as taking a political or for that matter any, decision that results in ending up in prison.
But I would like to see more attention paid to the type of experience that a potential judge would bring to the table. So how about candidates who have done public interest work, served as public defenders, held elective office, been plaintiffs’ attorneys, or specialised in qui tam cases? Why do we seem only to see academics, corporate lawyers, or those with extensive Department of Justice experience?
And I think the time has come to declare a moratorium– temporary, perhaps– on candidates who hold Harvard or Yale law degrees.