Tuesday, July 05, 2005


Ordinary people: The making of a Supreme Court justice

Are Supreme Court justices more than just politically-connected lawyers?

All too often, American public discourse confuses respect for our institutions with our feelings about the people who occupy them. Crediting George "w" Bush, at bottom a silly little man, with well-above-average intellect and leadership abilities is an example of this confusion. (On the other hand, the American people showed a notable capacity to make the distinction when they generally disapproved of Bill Clinton's sexual shenanigans while continuing to approve of his job as president.)

This confusion of the person with the job happens perhaps nowhere more deeply than with Supreme Court justices. (I think, for instance, it accounts for the Lithwick Fallacy of iconizing Sandra Day O'Connor as a "feminist pioneer.") The confusion is particularly strong when we consider the intellect or "legal mind" of Supreme Court justices, who nearly always get far more credit than they deserve on this score. Why is that?

To begin with, a Supreme Court nominee has to be built up during the confirmation process as the possessor of an "outstanding legal mind."

Once they get confirmed, there's an awful lot of power, prestige and institutionalized gravitas that simply goes with the job. If you appear in their courtroom you have to kiss their butts. As with President Bush, whether we take the Justices seriously or not, they have great influence over public affairs, and that alone commands a measure of respect.

Next, Supreme Court justices have a team of extremely bright young law graduates ghost-writing for them.

Last but not least, there are cadres of legal scholars (me included) whose own prestige would be diminished if we defrocked the high priests whose texts we so assiduously interpret.

So some very ordinary people can get a lot of credit for being a lot more impressive than they really are.

While I suppose Supreme Court justices are generally well above average within the legal profession, they are not selected for brilliance. I don't think I'm insulting anyone when I say that, if you look at Supreme Court justices' resumes before they first became judges, they have a level of accomplishment that puts them in, perhaps, the top five per cent of legal profession.

Impressive -- until you consider that there are about 500,000 lawyers in the U.S. So it says here that there are about 25,000 people who could do the job of Supreme Court justice about as well as the nine justices we actually have. The number of likely candidates is dramatically narrowed, not by merit, but by political connections and political considerations. (Most Supreme Court nominees are lower court judges, but they didn't get those jobs by being brilliant either; in a sense, those judicial credentials are a kind of resume padding, though the judicial experience is no doubt helpful.)

Justice Anthony Kennedy presents a fine example. Kennedy was born into a family well connected in California Republican politics. He inherited his father's Sacramento law practice as a state-wide lobbyist and did reasonably well in a job whose chief requirement was successful schmoozing. He had the good fortune to have become friends with Ed Meese, Ronald Reagan's top legal advisor, and thereby to gain appointment to the U.S. Court of Appeals based in California.

That's where I met then-Judge Kennedy -- as a law clerk to another judge on that court. He made a presentation on a legal topic I no longer recall at a lunch-time seminar for the law clerks, and I was impressed with how ordinary he seemed: not stupid, but perhaps the 12th smartest person in a room with two other judges and a dozen recent law school graduates.

Soon thereafter, Judge Kennedy became Ronald Reagan's third choice for the vacancy left by the retiring Justice Lewis Powell. Reagan's first choice – the brilliant but unconfirmable and subsequently nutty Robert Bork – was rejected by the Senate, and his second choice, the quirky libertarian Douglas Ginsburg, withdrew from consideration after it was disclosed that he had smoked pot with his law students while a Harvard Law professor.

Judge Kennedy was neither brilliant nor pot-smoking, but he was bland and safe, which was a strong virtue in the wake of the Bork-Ginsburg debacles. His legal mind – never a huge factor in the past – is now of course taken very seriously.


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