Thursday, January 17, 2008

Politics and the Judiciary

Recently posted on SCOTUS blog was a very interesting article by Terri L. Peretti, an Associate Professor of Political Science at Santa Clara University. Entitled, “Where Have All the Politicians Gone?,” Ms. Peretti discusses the recent trend of appointing Supreme Court justices that have solely federal judiciary experience, whereas in the past, justices often came from fairly prominent political backgrounds.


Now, at first glance, one might suggest that this makes sense. If you’re trying to fill the position of a judge, why not hire a judge? If you’re hungry, you go to a restaurant, not a sporting goods store. This response, however, is much too simplistic for it ignores what the Supreme Court is, a branch of government, and assumes the Court is only in place for the sole purpose of issuing opinions in a vacuum. This simply is not the case. Its decisions are in real time and affect real people and can often create significant social change. To not understand this is to ignore the political realities and public perceptions of the Court.


Simply look at the partisan view of the Court today. Many people view the Court as merely a political tool for whoever happens to be in Executive office. The 2004 presidential election was dominated by fear of which party would be able to nominate a justice who would lean one way or the other – ignoring the fact, albeit, that despite any track record, it’s still very difficult to predict how a nominated candidate might vote once on the bench. The nomination process of Justice Samuel Alito was dominated by partisan talk and the implications of his judicial track record as opposed to his ability to write well reasoned legal opinions that accurately follow precedent. At the end, Justice Alito, who will serve a lifetime tenure on the bench writing opinions that affect all Americans, was met with a divided Senate, split along strict party lines.


Because of the partisan implications of the Court, the Court must be politically aware of the effects its decisions have, not just on law, but on policy and people of all walks of life outside of the ivory towers of the judiciary. Real world experience in the political arena often hones skills necessary to navigate these difficult waters. If court decisions are left to be enforced by political branches (Executive and Legislative) and received by constituents who are aware of such partisanship, it only makes sense the Court makes decisions balanced by reasoned law and political acceptability.


This of course is the point of the article, that occupational homogeny is unhealthy for the Court and unhealthy for America. A diverse bench might better serve the interests of America (both occupational and social diversity). While the article goes into much further depth about the pros and cons of having politicians on the bench, I simply don’t have the space (or the time) on this blog to do much more than simply state that I agree with its message on occupational diversity and that the article is worth reading.

1 comment:

Worthington said...

To play devil's advocate: isn't the flip-side to this discussion that a lifetime-politician-come-judge is all too likely to be swayed by political bias, rather than to approach legal issues from a position of neutrality? I don't have rose-colored glasses about our legal system, generally. I recognize that most/all judges have their own preconceived notions of right and wrong, and no one is truly neutral. But part of me feels like a career spent in politics, beholden to particular interest groups, championing particular causes, would only push any supposed neutrality further to the fringes. I don't think it is too far-fetched to imagine this type of situation: Mr. X served 14 years as a Senator in State Y. During these 14 years, Mr. X repeatedly tried to pass laws about any number of politically divisive issues--abortion, the death penalty, affirmative action--and each successive time, the law was struck down by the Supreme Court. After his service, Mr. X is appointed and becomes Justice X of the Supreme Court. Now, State Z formulates an abortion restriction (or death penalty, whatever) law similar to one Justice X proposed when he was a Senator. Legal theory and stare decisis say this law must be stricken as unconstitutional. What are the chances Justice X says to himself "You know, I proposed a similar law myself, and though I spent 14 years of my career trying to pass such a law, this issue has been decided, and I am bound to follow precedent"? Perhaps I am cynical, but I am not convinced a career politician would be so diplomatic.

Certainly, the law does not occur in a vacuum. Judges should be aware of the political consequences of their rulings. But I am not sure a career spent in politics lends itself well to the neutral adjudication of issues.