While Washington is captivated by the turmoil over the House Select Committee examining the Jan. 6 insurrection, little attention is being paid to the work being done by the commission that President Biden appointed to consider proposals for reforming the Supreme Court. The conclusions this commission reaches may have much more significance over time than the Jan. 6 inquiry.
The commission is focusing on procedural changes in the timing and number of Supreme Court appointments and the length of the justices’ terms. But it would be more constructive to institutionalize a process assuring that the lawyers appointed to the Court come from more diverse backgrounds than has been the practice recently. This kind of reform would improve the quality of decision-making and discourage the practice of screening candidates for partisan or ideological orthodoxy, provoking partisan battles.
As assistants to then-Solicitor General Thurgood Marshall in the 1960s, we regularly appeared before a Court that was more typical of the diversity of experiences brought to the Court during its first 200 years. While those earlier justices lacked diversity in race and gender, they brought quite distinct professional backgrounds providing broader perspectives in resolving difficult issues of national importance. That breadth also made it less likely that the nominees were chosen — or opposed — for ideological purity.
Nominees were serving as congressmen, senators, governors, attorneys general, solicitors general, law professors, state court judges, or practicing lawyers. One, William Howard Taft, was a former president. (The definitive survey of the manifold factors leading to selection of Supreme Court justices is Henry Abraham’s “Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Bush II.”) Historians asked to name the “great,” influential justices will list John Marshall, Joseph Story, John M. Harlan, Louis D. Brandeis, Benjamin N. Cardozo, Oliver Wendell Holmes, Charles Evans Hughes, Robert H. Jackson, and Earl Warren. Not a single one previously had served as a federal judge.
Since 1990, however, presidents no longer scour the legal landscape looking for lawyers who have distinguished themselves in a variety of endeavors. Before 1990, only 14 of the 101 nominees to the Supreme court had served as federal judges. But since then, 14 of the 15 nominees appointed to the Court were serving as federal appellate judges, particularly judges appointed when they were relatively young. That is the heart of the problem.
Indeed, in the last 50 years, not a single member of Congress or state governor has been appointed to the Court; the last practicing lawyer appointed was Lewis Powell, who Joined the court in 1972.
For at least the last 30 years, the most important quality that the presidents and senators have used in evaluating candidates for the Court is ideological predictability: Sitting federal judges have a record of decided cases that provides a reasonably reliable basis for predicting how they will decide cases in the future. The virtually exclusive focus on sitting federal judges leads both proponents and opponents to turn the confirmation process into an unhealthy, partisan exercise that encourages presidents seeking to control the future agenda to focus on candidates whose judicial record seems most reliably extreme — either conservative or progressive.
The country would be better served, if there were a greater diversity in the professional backgrounds of the justices.
If we had a Supreme Court of nine career law professors, people would ask: “Why don’t we have some people with practical experience?” It is similarly unwise to have a Court composed almost entirely of former federal judges, screened for ideological reliability.
During his confirmation hearings, Chief Justice John Roberts famously said his job was “to call balls and strikes.” This analogy suggests a mindset that ignores partisan influences, but it does not accurately describe the Supreme Court’s work. Cases reach the Supreme Court because there is no clear answer. Determining the meaning of vital constitutional provisions requires the justices to make profound value judgments about our national polity. Each justice brings to the decision-making process the product of personal experience. If that experience is no different from their colleagues’ backgrounds, it adds nothing to the discussion or the decision.
When Justice Thurgood Marshall died, Justice Sandra Day O’Connor noted how she had been influenced by the stories he told from his experience as a civil rights lawyer. It reminded one of us of an occasion when, as a young law clerk, he participated in a discussion with then-Circuit Judge Marshall, who interrupted a clerk’s theoretical analysis of what constituted a coerced confession saying, “If you want to know if a confession is coerced, tell me how big the cop was.”
Would it not be helpful in attempting to determine what Congress meant by a particularly vague statute to have a justice who actually has participated in the negotiated legislative process? Consider how much the Court as an institution benefitted former Gov. Earl Warren’s ability to use his political skills to persuade his colleagues to issue a unanimous decision in its landmark school desegregation case, Brown v. Board of Education.
The president’s commission should consider whether a limit should be placed on the number of justices appointed directly from lower federal courts. An even more creative approach would be legislation requiring that some vacancies must be filled by lawyers who have distinguished themselves primarily in elective office, in administrative agencies, or in private practice.
Congress may prescribe the qualifications for Supreme Court justices, just as it regulates many other aspects of the Court’s functions. Congress has constitutional authority to enact laws considered “necessary and proper” for carrying out the “Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof” (emphasis added). That includes the president’s power to nominate Supreme Court justices.
Diversity in race and gender is vital. So is diversity in professional background. The work of the Supreme Court is too important to be left solely to a small corps of candidates who have trod the same career path as federal judges.
John S. Martin served as United States Attorney and United States District Judge for the Southern District of New York.
Phillip Allen Lacovara was Deputy Solicitor General of the United States, counsel to the Watergate Special Prosecutor, and president of the District of Columbia Bar.