A judicial experience myth

SUPREME COURT NOMINATIONS

Scott D. Gerber / Special To The National Law Journal

March 9, 2009

To paraphrase the classic E.F. Hutton commercial, "When the chief justice talks, people listen." It doesn't even matter if what he says is a 90-second sound bite in the middle of a sentimental speech about his predecessor in the center chair.

Such is the case with Chief Justice John G. Roberts Jr.'s comment during his recent Rehnquist Center Lecture that, because every member of his court is a former federal appeals court judge, the court now takes "a more legal perspective and less of a policy perspective" to the questions it decides. Previously, he said, "the practice of constitutional law — how constitutional law was made — was more fluid and wide ranging than it is today, more in the realm of political science."

Roberts' praise for Supreme Court justices with prior judicial experience marks at least the third time since the heyday of the Rehnquist Court that someone with the power to influence who gets appointed to the nation's highest court has extolled the virtues of such experience. The most vicious occasion occurred during the imbroglio over the nomination of Harriet Miers. As readers may recall, Miers withdrew her name from consideration after being savaged by the legalerati for, among other reasons, a lack of judicial experience.

Consensus-building, debunked

Intriguingly, the current fetish about prior judicial experience actually traces to the presidency of Bill Clinton, who announced in 1994 that he was nominating Stephen G. Breyer to the Supreme Court in large part because of the nonpartisan "consensus-building" skills that Breyer had exhibited on the 1st U.S. Circuit Court of Appeals.

But none of the articulated reasons for valuing prior judicial experience — as a predictor of consensus-building skills, as a proxy for merit and to ensure that Supreme Court decisions are grounded in "law" rather than "policy" — are supported by the facts. Keeok Park and I debunked the consensus-building rationale in an article published in the American Political Science Review that examined the members of the Rehnquist Court with prior appellate court experience. We found that all the justices became less concerned with building consensus as justices than when they were as judges in a lower court because they viewed themselves as policymakers on the high court.

A Ph.D. in political science is not required to repudiate the argument that prior judicial experience is a necessary condition for "greatness" on the Supreme Court: A nodding acquaintance with history will suffice. Only two of the justices appearing on all, or most, of the lists of "great" justices had significant prior judicial experience, and those justices, Oliver Wendell Holmes Jr. and Benjamin Cardozo, were great because, in the evocative words of Felix Frankfurter, "they were Holmes and Cardozo. They were thinkers, and particularly, legal philosophers."

With respect to the most recent iteration on the importance of prior judicial experience — Roberts' claim that it has led the members of his court to forsake policy judgments for legal judgments — political scientists have come out of the woodwork to challenge it. For example, Professor Lee Epstein of Northwestern University School of Law, among the nation's most influential political scientists, concisely informed the New York Times when queried about the chief justice's claim that "the data don't support it."

The most profound judicial mind since Holmes doesn't support it, either. Judge Richard Posner of the 7th Circuit concludes in a recent book, How Judges Think, that judges, including Supreme Court justices, can't help but make policy decisions. In fact, Posner characterizes Roberts' well-known analogy that judges should be "umpires" not "batters" as little more than an "updating for a sports-crazed era" of Alexander Hamilton's sophistic claim in Federalist No. 78 that federal judges would exercise "neither force nor will but merely judgment" if the Constitution were ratified. Most people didn't believe Hamilton in 1788, and Posner doesn't believe Roberts today.

Let's hope that the misguided call for Supreme Court justices with prior judicial experience suffers the same fate as E.F. Hutton: It fades into oblivion.

There is reason to be optimistic. President Barack Obama stated during the campaign that he was open to appointing someone to the nation's highest court who wasn't a sitting federal appeals court judge. Although the policies an Obama Supreme Court nominee would seek to advance almost certainly would be more egalitarian than my libertarian instincts would prefer, at least we could put to bed the trope that Supreme Court justices aren't making policy and concentrate in 2012 on what John McCain encouraged us to concentrate on in 2008 when he was asked about filling Supreme Court vacancies: Elections have consequences.

Scott D. Gerber is the Ella and Ernest Fisher Chair and Professor of Law at Ohio Northern University Pettit College of Law and a senior research scholar in law and politics at the Social Philosophy and Policy Center. He is the author of, among other works, First Principles: The Jurisprudence of Clarence Thomas (2002) and The Law Clerk: A Novel (2007).