I want to thank Professor Hendler for his warm welcome and the invitation to post on this blog. It really is an exciting time to be studying the Supreme Court.
I want to elaborate on a few points from my San Francisco Chronicle article, which Professor Hendler posted below. As a political scientist, my primary interest is not so much in who President Obama should be appointing to the Supreme Court, but in what influence different types of nominees are likely to have on the Court.
For example, right now we have an unusual circumstance in which all nine Supreme Court justices (including Justice Stevens) was a sitting federal judge at the time of appointment. As a political scientist, I want to know what happens (if anything) when there is so little diversity in the professional qualifications of the justices. Would it matter if President Obama appointed another sitting federal judge, instead of someone from the political branches of government? In previous decades, presidents used to seriously consider governors, senators, and even former presidents for the Court. Now it has become much less common.
I think there are at least three consequences to this trend. The first two I discuss in the article. I think there is a real problem if justices come to the Court without any sense of what the policy impact of their decisions is likely to be. Without political experience, justices may have no foundation for understanding how their decisions will affect the lives of the people who must abide by their judgments. It surely helped Chief Justice Earl Warren, as the former governor of California, to understand how local school boards were likely to react to Brown v. Board of Education or how local police forces where likely to respond to Miranda v. Arizona. Without this type of practical experience, justices might end up writing decisions that are out of touch with the lives of Americans.
Second, justices who lack political experience might be less skilled at forging the coalitions that are necessary for the Supreme Court to conduct its business. It takes a majority of five justices to reach a decision, and it requires five votes to agree upon a majority rationale. Most federal appellate judges sit on tribunals with no more than two other judges, only occasionally meeting in larger groups. Politicians, however, must routinely work with other actors to make policy. A distressing number of Supreme Court decisions in recent years have had no majority rationale, including the landmark Seattle School District Case, which involved the use of race in school assignments. These are important cases, and we need the Court to be able to speak with one voice. Perhaps the justices would be more capable of doing so if they were skilled at political negotiation.
A third problem, which I do not discuss in my article, relates to research conducted by political scientists Lee Epstein, Jeff Segal, Andrew Martin, and Kevin Quinn (linked here). They find that lower court judges are actually more likely to affirm lower court opinions than judges with other backgrounds. What is more, justices have a particular bias for their home circuit.
In the next few weeks, I look forward to having discussions about these and other topics related to the appointment process. Feel free to email me with any questions that you have (firstname.lastname@example.org).