15 July 2007

The Hidden Election Issue

Over at SCOTUSBlog, Tom Goldstein has two interesting posts (1) (2) on potential nominees for the Supreme Court in the next Administration (presuming arguendo that it's Democratic).1 I'm afraid that Mr Goldstein, as eminent a member of the Supreme Court bar as he is, has a couple of blind spots that overly limited his candidate list.

We must also consider the specialty areas of potential judges... and whom they are replacing. For example, presumably the first justice to leave would be either Justice Stevens (age) or Justice Ginsburg (health). Replacing either of them — let alone both of them — with transactional and/or government-affairs attorneys would make the Court's civil procedure jurisprudence even messier than it already is.2 Further, Justice Ginsburg is the only current member with a long-term, significant experience set on the left side of the v.

I'm also gravely disturbed by the poor educational diversity on the Court. I'm not referring just to the law schools represented, either. Quickly — name the last justice who had at least bachelor's-degree-level competence in any scientific discipline, even from a forty-years-ago undergraduate degree. I'm not saying that we need biologists to judge all environmental cases, but it sure wouldn't hurt to have a justice who has fully assimilated the scientific method judging patent appeals and the inevitable global warming cases! Instead, we've got a bushel of poli sci/economics/American history types, both on the Court and among the seriously considered candidates.

Together, these reflect the profession's refusal to recognize that it's inherently specialized, and becoming more specialized all the time. It's long past time for the courts to reflect that — especially those courts that always make decisions in multi-judge panels or en banc. Unfortunately, Judge Sotomayor (mentioned as a leading candidate) is an excellent example here: She really screwed up the trial-court decisions in Tasini when she was a District Judge, both objectively and on the basis of precedent at the time. Had she considered the difference in language between § 201 of the 1976 Act and the two cognate provisions in the 1909 Act, I don't think she would have made that mistake. However, neither she nor her clerks had much (if any) copyright and/or publishing-law experience, so they didn't know to look there... and weren't helped by the parties. (It's really not a close question at all.)

I also suspect that the Democrats are too gunshy to look very deeply into academia for candidates, while they blithely forget that from 1968 to 1992 there was only a four-year period (marked by cronyism and NO Supreme Court nominations) in which there was a Democrat in the White House. That has resulted in many bright minds with far better "judicial demeanors" staying in law schools, or even never having the opportunity to do otherwise — Kit Kinports (leading expert on criminal law now at Penn State and an exceptionally clear writer) comes to mind, but only because I know her myself. And, bluntly, if the Democrats are looking at state courts, they're looking in the wrong place: Judges who get elected to one court tend to make poor judges on different courts when they get appointed. The objection that "academics can't judge" might make more sense on a court that decides matters with a single, or even three, jurist(s); adding a more-recent academic to the Court, however, should certainly enhance its diversity of thought.3

  1. I'm no Democrat, no matter what those ballots counted up the road in Chicago say! That party, and in particular its internal governance structure and personnel, is much too conservative for me; the less said about the Woolly Mammoths, the better.
  2. This is actually the biggest problem I have with Justice Scalia and Justice Thomas: Neither one of them pays much, if any, attention to the procedural posture and rules of decision when pontificating on the way the law "should" be.
  3. With all due respect, Justice Scalia didn't/doesn't count for me as "adding diversity of thought" here for three reasons. First, the faculty he "came from" was, and remains, probably the least diverse faculty of any top-25 law school, both doctrinally and otherwise (excellence of individuals aside). Second, perhaps most obviously among the sitting members of the Court, Justice Scalia has demonstrated a more than occasional unwillingness to allow inconvenient facts and inconsistencies to refute preconceived notions — which is in direct opposition to what an acadmic should aspire to. Third, at the time he was confirmed, the distance between academia and the Court was not nearly so Grand Canyonesque.