APPEASEMENT

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.

16 thoughts on “APPEASEMENT”

  • It's also interesting to note that Stevens was the only Protestant in the Supreme Court. Without him, it's 6 Roman Catholics and 2 Jews. Not sure that's relevant information in any way, but I do find it interesting.

  • Just to avoid confusion, I believe you're talking about the US Court of Appeals for the District of Columbia Circuit, oftentimes called the DC Circuit. A "District Court of Appeals" is a contradiction, since US District Courts are below the US Courts of Appeals for the various Circuits.

  • 0) Thanks for the history lesson. I ignorantly believed this was the way it's always been. (Rehnquist? Warren? Brandeis? wow…)
    1) At long last, we'll have a lesbian perspective on the SCOTUS.
    2) Since the right is crapping their pants at the president appointing Goodwin Liu to the 9th Circuit Court of Appeals (often on the grounds of "he's being groomed for the SCOTUS"—as of the potential to be on the SC should *disqualify* one from being a judge), I think you're right—maybe he should appoint Liu and watch them try to filibuster a feel-good story appointment.

  • I seriously thought he was going to appoint the other Clinton back before Sotomayor. Just to piss the GOP off.

    It wouldn't be the worst idea. People still love Bill Clinton, and it would be hard to imagine a filibuster of his appointment being any more popular than impeaching him.

  • HoosierPoli says:

    I don't give a crap who it is as long as they're Democrat, under 50, and run marathons for fun. The Supreme Court has basically become an ideological endurance race; last one to die wins.

    I wonder if those stents manufacted of naught but pure contempt can keep Scalias arteries open for another six years.

  • Crazy for Urban Planning says:

    I really find the whole thing distasteful. If I were god I would make a couple changes to SC:

    1) No more life appointments: How about one 18 year term? I'm not sure how long your term should be, but having someone in the court from 45-95 just seems preposterous to me.
    2) (this one is more about everything in life these days) When did it become such a political position? I always thought the Judicial side of the government was supposed to be pretty non-political. But, alas, nothing is non-political anymore. If I decide to wear a red tie tomorrow someone will call me a socialist. I better wear underwear all day…
    3) I recall Scalias would go on bird hunting trips with Dickie boy – I'd like to know a little more about the Justices, how do these people spend their ample time? Why can't graduate students studying law ask them what they were really thinking? Why can't it be a little more transparent?

  • Your qualms, Urban Planning, stem from the fundamentally contradictory nature of the court: the court is designed to be non-political, removed from transient concerns and disputes, but at the same time everybody knows that judges are political beings. This contradiction is reflected in key jurisprudential debates about whether judges are neutral umpires, dispassionately applying the law to facts, or whether judicial opinions reflect the biases and allegiances of the judges writing them.

    Irrespective of any of this, there has been a lot of sound commentary about how we need a judge on the court with more political, or practical life experience – beyond serving on the Court of Appeals. I agree. But one name I haven't heard enough is Justice Thurgood Marshall. He's the model we should look to in this particular moment. Marshall cut his teeth with years of experience in private practice. Unlike most of the justices on the court right now, he identified strongly with the underprivileged. Most of all, Marshall had a profound understanding of the demands of social justice. That's what we need on the court more than anything right now.

  • My money – and my hopes – are on Martha Minow, by the way. A solid progressive and Dean of Harvard Law.

  • Crazy for Urban Planning says:

    Nice comments RosaLux. I don't know enough about lawyers or judges to have a nominee, though it would be good to have a nominee who has worked in a more practical setting than a Court of Appeals. Martha Minow sounds pretty good to me.

  • If you check out the late 20th century history of sc confirmations, they often were unanimous or nearly so regardless of perceived ideology (I think Buzzie Ginsburg, our ACLU queen, was a 98-0) The modern era of Real Bad Blood began with the character assassination of Judge Robert Bork which was led by the departed Sen Ted Kennedy. I think you can mark that as the beginning of ideological hard ball in the confirmation process. //bb

  • BB in GA, I think your logic is flawed if you're claiming that tough nomination fights began with the Bork nomination and were a departure from the easy nomination of, say, Justice Ginsburg. Ginsburg was nominated by Clinton, a decade AFTER Bork, who was a Reagan nominee. The truth is that, while confirmation hearings were, perhaps, more contentious post-Bork, they haven't since reached that high mark of controversy. Most nominees are rather easily confirmed.

    So: Instead of understanding the Bork nomination as the beginning of a new era in SC nominations, it's more plausible to understand it as an abberation, an example of an especially radical nomination that the country rejected. Kennedy did not assassinate Bork's character – he simply articulated the very real concern among many that Bork would try to undo the civil rights victories of the Warren and Burger courts. The blame lies with Reagan for nominating an extremist.

  • Rosalux,

    Yeah, you are undoubtedly correct. That is one of the touchstones of this struggle. Conservatives are wrong for just existing as Conservatives.

    I think that this is one of the Masterstrokes of the Left. I'm sure it's in Alinsky's book somewhere…//bb

  • What I would love to see happen (but there's not a chance in Hell it will) would be to have Obama nominate Kagan, let the douchebags on the right filibuster for a couple of weeks and then have Obama withdraw the Kagan nomination and replace her with Harold Koh.

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