Auditioning for the Supreme Court
PRESIDENT REAGAN's nomination of Judge Anthony Kennedy to replace Justice Lewis Powell on the Supreme Court confirms a clear pattern. This administration, in its calculated determination to select justices who will serve its agenda, again has relied on a nominee with a judicial track record. The very vital historical tradition of naming justices without prior judicial experience has clearly been repudiated by President Reagan and his advisers. In the past, Supreme Court nominees have been relatively balanced between those with or without prior judicial experience. The Reagan-Meese practice runs the danger of institutionalizing judicial experience as a particularly prized qualification. When Mr. Reagan announced the ill-fated Ginsburg nomination, ideological foes bemoaned Douglas Ginsburg's brief judicial tenure. Such reflexive opposition only hardens the sentiment against future nominations for judges without prior experience. Pity.
The Reagan-Meese vision of constitutional law will long be remembered for its bizarre qualities. ``Judicial restraint,'' in their terms, has Orwellian overtones, as restraint really means activism in behalf of a particular social agenda. They would have judges pursue some mystical ``jurisprudence of original intent,'' a notion so elusive that two of our first great constitutional expositors, Alexander Hamilton and Thomas Jefferson, came to precisely opposite conclusions when they confronted the proposition. In a final twist, Attorney General Edwin Meese casually proclaimed that Supreme Court decisions are not binding beyond the case at hand. And all this parades as ``conservatism.'' Irony abounds.
The vision remains unfulfilled, but hardly for want of trying. Robert Bork's and Douglas Ginsburg's shattered dreams offer mute testimony to those efforts. The vision ultimately depends on the confirmation of Supreme Court nominees cast in a president's own image.
Ronald Reagan is no different from numerous predecessors who as fervently sought to shape the court to their liking. George Washington, at the outset in 1789, spoke of his ``anxious concern'' for judges who would ensure ``the happiness of our country and the stability of its political system.''
When Abraham Lincoln disapproved of the Dred Scott decision of 1857, he boldly stated: ``We mean to change that decision'' - by appointing new judges. Richard Nixon in 1968, and Mr. Reagan in 1980, promised nothing less in their quests for ``law and order.''
The gap between presidential hopes and reality is a historical fact. Franklin D. Roosevelt appointed nine men to the court. Their subsequent bickering and quarreling contributed to perhaps as many viewpoints of constitutional law. Presidents can be enormously disappointed in their choices. Theodore Roosevelt appointed Oliver Wendell Holmes after being assured that Mr. Holmes was ``right'' on the trust question, but Holmes's first major judgment involved a dissent against the Roosevelt administration's major antitrust case. Examples are legion.
Reagan and Mr. Meese have sought to avoid the unpredictable and to turn judicial selection into a finer science. What all six of Reagan's Supreme Court nominees - Sandra Day O'Connor, William Rehnquist, Antonin Scalia, and Messrs. Bork, Ginsburg, and Kennedy - have had in common is prior judicial experience.
Reagan and Meese apparently see service on a lower court as a sort of tryout run for nominees, to make the selection process a bit more predictable.
The Reagan administration has carefully selected lower-court appointments to reflect the political, social, and ideological agenda of its most conservative sector. With few exceptions, the Senate has passively approved the choices - much to its later embarrassment. The Reagan judges have demonstrated an almost unprecedented degree of racial, gender, age, and ideological uniformity. Tests for ideological purity have been widely publicized.
The administration, it seems, has turned Supreme Court nominations into a two-tiered process, beginning with lower-court auditions. Bork frankly viewed his 1982 District of Columbia Circuit Court of Appeals appointment as a tryout. His colleague, Mr. Scalia, however, received the President's first call. Scalia's audition undoubtedly gained higher marks from conservative ideologues within the administration. Reagan and Meese have sugarcoated their political choices with the veneer of judicial experience. That experience, it seems, provides the final litmus test for purity.
Felix Frankfurter once suggested that the correlation between prior judicial experience and performance on the Supreme Court is exactly zero. Lacking experience himself, the professor-justice perhaps exaggerated. But not by much. Consider what we might have missed had judicial experience been so imperative. John Marshall offers a useful opener. George Wythe, one of the great legal minds of the late 18th century, tutored Mr. Marshall, but reflections from broad political and legislative experience, not ``legal'' theory and precedents, dominated Marshall's bold, pioneering state papers that we call ``constitutional law.''
Louis D. Brandeis came to the court armed with a brilliant law school record, a successful corporate practice, a law review article on some newfangled concept of ``privacy,'' and notable achievements as the ``People's Attorney,'' defending and advocating a variety of social-welfare reforms. No judicial experience in that r'esum'e. Learned in the law he was, but Brandeis's judicial greatness rests on his incorporation of empirical social and economic data to shape legal reasoning and results.
The list is legion: Joseph Story, Roger B. Taney, Morrison R. Waite, Charles Evans Hughes, George Sutherland, Harlan F. Stone, Robert H. Jackson, and Earl Warren - to name some memorable ones. Mr. Powell, whose seat is now vacant, and who has been warmly applauded from all sides, had no judicial experience before Mr. Nixon named him in 1971. President Reagan of all people should recognize the cue.
We certainly have had mediocre, insignificant justices who had no judicial experience. But similarly a slew of experienced justices, such as Sherman Minton and Charles E. Whittaker (to be mercifully brief) have never been accused of greatness, or anything approximating it. We have had, in fairness, a notable array of appellate judges who made enormous contributions.
The judicial-experience factor regrettably seems to have been institutionalized. Reagan's nominee lists have exclusively featured appellate judges. (This President, unlike others, dare not nominate his attorney general.) The Reagan administration has its political reasons for following the practice; ironically, its opponents have turned the argument on its ear to serve their political needs. The pattern leaves the nation and the court bereft of a great tradition: Supreme Court justices without judicial experience, yet ones steeped in rich political, legislative, or litigative careers. Pity, indeed.
Stanley I. Kutler is writing a history of the Watergate affair, to be published by Alfred A. Knopf. He is E. Gordon Fox professor of American institutions at the University of Wisconsin, where, he teaches constitutional history.