Monday, May 10, 2010

The Judicial Meritocracy Marches Forward

Matt Yglesias says the only thing, I think, which really needs to be said about Elena Kagan's rise though the judicial hierarchy:

I think the clear similarity is between Kagan and John Roberts, both the very models of a modern Supreme Court justice. The key things you want in a justice are someone who is (a) young, (b) ideologically reliable, and (c) easily confirmable. That points to someone who, like Roberts/Kagan has had a meteoric career rise due to the deliberate patronage of powerful politicians without assembling much of a public record on contentious legal issues.

You might think, as I do, that this is a dumb system. If it were up to me, Supreme Court justices would serve fixed terms and the only people eligible for a nomination would be experienced appellate judges. But we have the dumb system we have, and Kagan is, like Roberts, a perfect candidate given the system....

When Roberts was put forward, you had certain BSy efforts to scrutinize his record or “temperament” and discover he was like such-and-such but it was perfectly obvious to anyone with common sense that he’d vote like an orthodox conservative Republican. Similarly, it’s perfectly obvious that Kagan will vote like a mainstream Democrat, with all the plusses and minuses that implies....[I]n principle it would be nice to see presidents nominate people with meaningful public records we can scrutinize, just as it would be nice for nominees to give real answers to questions at their hearings. But presidents and nominees respond to the incentives in our flawed, centuries-old system.

I'm not quite as cynical as Matt here--as I've argued before, I don't care for a politically powerful judiciary, as I see that as deeply undemocratic, and so frankly I'd rather it not be especially important that the people who end up on the court have extensive real-world judicial experience that we can all scrutinize, argue over, and presumably attempt to align with whatever political projects or goals we prefer. Given that what I'd really like to see is a judicial environment where the implications of Marbury v. Madison were radically limited and the Supreme Court was constitutionally obliged to play a far smaller role in our polity, the notion of having a Supreme Court justice whose exposure to the law is overwhelmingly academic doesn't necessarily bug me. [Slight update, 12:00pm CST: In other words, I'm not saying that I necessarily prefer nominees with slight or opaque records, but rather that I wish we lived in an environment where slight or opaque records would be something of a non-issue, because the Supreme Court wouldn’t be that powerful, rather than in the environment we actually live in wherein, because the SC is so powerful and politically contested, weak or opaque records become an actual political plus for strategic political operatives...or for that matter, who knows? Perhaps canny, ambitious lawyers themselves.]

But of course, these preferences of my own also lead me around to some of Matt's claims as well--the idea of fixed as opposed to lifetime terms, for example, makes good sense to me. And overall, what he says about the judicial meritocracy, and the exceptionally narrowing process it has on "good" candidates for the court, is simply dead accurate. In the end, Kagan, assuming she is confirmed (and she probably will be; you can't imagine that Obama's people hadn't already counted out all the votes as far as they possibly could into the future before they came to this decision), will be a reliable, smart, acceptable liberal voice. The last great surprise on the Supreme Court was David Souter; no one, of either party, very reasonably, wants to hand the keys to an institution this powerful (unfortunately) over to someone who isn't going to decide things about as predictably as reason allows. For those of us who want something different...well, the problem begins, as always, with the process and the context, not the candidates themselves.


Anonymous said...

Why do you think limiting the term of appointments would be a good thing? Wouldn't that make justices less independent and perhaps more attuned to the interests of future benefactors (e.g., those who have the power to reappoint them to the Court or those in the private sector)?

Russell Arben Fox said...


Assuming that we're unlikely to see a change in the sort of SC which we currently have--that is, a powerful, politically changed and partisan Holy Grail--then I'd rather than the justices themselves be seen much more clearly as political appointments, subject to term limits and re-appointment, just like other, very powerful, politically charged appointments, like that of the Federal Reserve chairperson, for example. As it stands today, we appoint for life people whom those who wrote the Constitution assumed would, at best, be only involved in current political disputes to a limited degree. I'd rather have that...but if I'm going to have the former, than we ought to treat SC justices accordingly.

Aloysius said...

Another first or is it

Anonymous said...

I think you greatly overestimate how "politically charged and partisan" the Court is. The Supreme Court has historically been the most collegial and least overtly political branch of government. Even now, with the supposedly fierce ideological divide on the Court, most decisions are unanimous or close to it. 5-4 decisions that line up, to a greater or lesser extent, with mainstream political distinctions ("right" and "left") are really relatively few.

I think you may be giving the Supreme Court--as an institution, as well as the individual justices--too little credit.

harry b said...

I agree with you about this Russell (no surprise) -- and the way to avoid term limits turning the court more political is to make them long and non-renewable (10-12 years?).

Philip J. Harold said...

Term limits on judges is a great idea. So is judicial independence, however.

Luckily, we have have our cake and eat it too -- just slap limits on SCOTUS, but keep lifetime appointments for the lower courts. The two are fundamentally different institutions, because SCOTUS is of it's nature inherently going to be political.

(It's not a matter of giving SCOTUS 'credit' or not, anonymous, it's just the simple fact, as was seen by Robert Yates from the get-go:

Russell Arben Fox said...


From what I've read, the cause for the increase in unanimous rulings from our current Supreme Court has been generally due to the skilled use of technicalities, so as to be able to issue extremely narrow procedural decisions that everyone can agree with. As for the collegial relations between the justices, you're obviously correct that they are, basically, smart and decent people...but that doesn't take away from the fact that the role they take on, and the consequent arguments over their selection, are weighed down with enormous and divisive political importance, with the result that a real narrowing of the range of choices for justices necessarily follows.

Harry and Lafayette,

Good thoughts, both of you. Lengthy (I might even go for something like 14 years, to make sure that the replacement nominees would rarely coincide with presidential elections) and non-renewable terms for the Supreme Court, lifetime appointments for everyone else. There might even be another upside to such an arrangement: more regular vacancies on the SC would, in the long run, could possibly some of the pressure off the perennial logjam in federal judicial appointments overall.

Anonymous said...

I repeat: if you actually read every Supreme Court opinion in a given year, Russell, your view would change.

Philip J. Harold said...


By your logic, there is no "fierce ideological divide" in Congress, and we are "overestimating how politically charged and partisan" it is. Any Senator or Representative will tell you how there is a vast reservoir of agreement on 97% of what Congress does. Congress is civil; they all get along too. Yet nobody in their right mind wouldn't characterize it as partisan, just as no one who seriously studies the court would consider dropping the conservative/liberal labels as a method of understanding the institution. Of course it's ideologically charged; everyone knows this, and it's true.

Reading all SCOTUS's opinions, just like reading all the statutes passed by Congress, wouldn't make a bit of difference in how one properly understands those institutions. Russell is right.