Judicial Nomination Process Leads to a Supreme Court of Nobodies

Because the US Supreme Court is “possessed of neither the purse nor the sword,” its authority in the constitutional system “ultimately rests on sustained public confidence in its moral sanction.”

When in 1962 Justice Felix Frankfurter offered this explanation of the crucial importance of public confidence in the court, he was serving as a member of the Earl Warren Court, one of the most liberal courts in our nation’s history. Its decisions were attacked by conservatives on the ground that the justices were disregarding the Constitution and imposing their own personal views on important questions of public policy—the same criticism that progressive critics are today leveling against Chief Justice John Roberts’ court.

Frankfurter was dissenting from the court’s landmark ruling establishing the one person/one vote principle in apportioning legislatures. Despite his opposition, the public came to accept the court’s decision because, despite many controversial rulings, the court enjoyed a deep reservoir of public confidence.

Gallup polls during the Warren court years indicated that, despite intense controversy over some decisions, about 60% of the public regarded the court’s performance as “good” or “fair,” but only 20% as “poor.”

By contrast, polls over the last several years consistently track a dramatic decline in public confidence in the court and the way the court decides cases. According to a recent survey by the Annenberg Public Policy Center at the University of Pennsylvania, barely 40% of Americans believe that Supreme Court justices “are more likely to set aside their personal and political beliefs to make rulings based on the Constitution, the law, and the facts.”

The slide in public confidence in the court can be reversed, but first its causes must be understood.

The intensity of the public’s current disdain reflects, in part, a steady decline in regard for the stature of the individual members of the court, who for the last few decades have been chosen from the ranks of faceless and doctrinaire judicial careerists rather than diverse lawyers and public officials of recognized stature and practical wisdom.

Political pressure either to defend or overturn Roe v. Wade has led presidents of both parties to abandon the historic practice of appointing distinguished public officials and prominent lawyers of recognized stature and practical wisdom.

Instead, post-Roe presidents have focused almost exclusively on federal appeals court judges whose judicial record allows both supporters and opponents to predict how likely they are to vote either to affirm or overrule Roe.

This exercise also has induced opponents to savage the reputations of nominees predicted to be hostile to abortion rights, thus seriously undermining the public’s confidence in the nominee before they even heard their first case on the Supreme Court.

Diminished Stature of Recent Nominees

Over earlier generations, the court had developed a reservoir of respect, because the public perceived that the persons appointed to resolve the nation’s most important constitutional issues came to the court with distinguished credentials and broad experiences in a variety of real-world roles.

We don’t know precisely how the Framers of the Constitution wanted the Constitution to be interpreted. But history shows the kinds of persons to whom these judgments were to be entrusted—law-trained persons of demonstrated public service and stature, not ideologues of either extreme.

During the first 180 years of our nation’s history, which ended with the retirement of Chief Justice Warren, a total of 96 lawyers were appointed to the Supreme Court, all but ten of whom had earned public recognition through service as US senators, congressman, members of the cabinet, heads of important government agencies, as state governors, legislators, or judges. One, William Howard Taft, was a former president.

Those few who had not served in high public office had, for the most part, distinguished themselves in other public endeavors and included such distinguished private practitioners as Louis D. Brandeis and Thurgood Marshall.

George Washington himself, who had presided over the Constitutional Convention, established this precedent when he appointed the six members of the first Supreme Court. He chose men who were among the most famous and highly regarded figures of the Revolutionary period, including Chief Justice John Jay who served as secretary of state under the Articles of Confederation.

These were public figures who were known and respected throughout country when they were appointed. It would have been hard to find anybody who had not heard of Earl Warren before his nomination as Chief Justice. The same can be said of his colleagues Robert H. Jackson, Tom Clark, Abe Fortas, Arthur Goldberg, Thurgood Marshall, and others.

By contrast, it is doubtful that anyone outside the legal community had ever heard of John Roberts or any other present member of the court before their nominations.

This recent pattern of elevating careerist federal appellate judges is especially egregious, since virtually all of the judges recently promoted to the Supreme Court left the rough and tumble of the practical world and went on the bench when they were relatively young, well before they had the opportunity to accumulate the life experiences that are normally associated with wisdom and insight.

Three of the justices (Sonia Sotomayor, Neil Gorsuch, and Clarence Thomas) were still in their thirties when they became federal judges. Three others (Samuel Alito, Brett Kavanagh, and Ketanji Brown Jackson) were in their early forties.

Not a single one of the eight judges picked for the court had even reached age 50. (Justice Elena Kagan was dean of Harvard Law School and a former US solicitor general)

I am not suggesting that any current member of the court is unqualified. Each possesses intellect and technical legal acumen, and some of them add a diversity that was sadly missing from the court over its first 180 years.

The problem with today’s court is that we have mistaken academic intelligence for the kind of necessary wisdom formed through a long career of varied and distinguished experiences.

Because of a fundamental change in the criteria and process for selecting candidates in the last few decades, these men and women have come to the current court with no public stature that would entitle them to the benefit of the doubt when they issue controversial rulings.

Without that kind of demonstrable pedigree of independent, personal distinction, the public has been unfortunately comfortable assuming that decisions with which they disagree are tainted by abject political loyalty to the president who appointed them.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Philip Allen Lacovara was deputy solicitor general of the United States for criminal and national security matters, counsel to the Watergate special prosecutor, and president of the District of Columbia Bar.

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