APPEASEMENT

Posted in Uncategorized on April 12th, 2010 by Ed

For a number of reasons my ability to write this evening is limited, so I will pick the low-hanging fruit of the Stevens retirement. A few things stand out.

First, I was particularly struck by the President's comment about "occupational diversity" on the Court. In the 1980s our political class abandoned the idea of appointing someone other than a career jurist to the high court. The only way to pronounce someone "qualified" was to see pictures of him (or rarely her) wearing robes. This is not only historically unprecedented but also quite silly. Seeing as how the SC does not operate like any other court, thus rendering any need to understand courtroom procedure moot, previous judicial experience is not mandated Constitutionally or practically. Unfortunately, the possible decision to appoint a non-jurist (most likely Solicitor General Elena Kagan) will give the right a ready-made talking point on which to harp. Seeing as how they do not trouble themselves with history or facts they will have no problem overlooking other appointees who had no previous judicial experience, including Clarence Thomas**, William Rehnquist (Asst. Attorney General), Lewis Powell (private practice), Earl Warren (Governor of California), Tom Clark (Attorney General), William O. Douglas (SEC chairman), Felix Frankfurter (law professor), Stanley F. Reed (Solicitor General), Harlan Fiske Stone (Attorney General), Louis Brandeis (private practice), and Charles Evans Hughes (Governor, Secretary of State) among dozens of others. I think some of those guys did alright.

Doing something other than being a judge at some point in one's professional life isn't a terrible idea and is probably a net benefit to the Court. There is no justification, legal or logical, for the recent "farm system" practice of mindlessly calling up the next player from the AAA team that the US District Court of Appeals has become. It might not be a coincidence that so many extraordinary justices were ones who skipped over Appeals and straight to the SC, much as a talented baseball prospect would skip AAA and go straight to the big leagues.

Second, the President would do well to keep in mind that it doesn't matter if he appoints Kagan, some bland Appellate judge, Bill Ayers, or Bill Clinton – the Senate Republicans are going to flip out, crap their collective pants, and start threatening filibusters. This has nothing to do with logic and everything to do with payback time for the health care stuff. Nothing short of letting Mitch McConnell hand-select the nominee will appease them. As usual, the only rational response (and one that no one has the balls to implement) is to call their bluff. Make them filibuster. Let's see if they have it in them to continuously hold the floor for three or four weeks, talking about nothing and rallying public support for their childish temper tantrum. A betting man would put good money on such a stunt backfiring and instead being perceived as obstructionism for its own sake, not to mention generally making Senate Republicans look like the asswipes that most of them are.

Both the President and the nominee have to walk across the flaming coals regardless, so the former might as well pick who he really wants. As usual, though, I expect his choice to be yet another vain effort in the quest for "bipartisanship."

** Thomas was the head of the EEOC for nearly a decade and was appointed to the US District Court of Appeals about 6 months before his SC appointment. So he had next-to-no experience as a jurist.