A major cause of the recent collapse in public trust in US Supreme Court objectivity and integrity can be traced to the lack of demonstrated public stature and reputation of candidates picked for the court. This recent practice of appointing otherwise faceless candidates reflects the self-destructive goal of screening candidates for ideological purity.
That goal is feasible when a president looks exclusively to judicial bureaucrats sitting on the federal courts of appeals, where their opinions create a record that can be tested for the desired ideological orthodoxy.
Damage From Ideological Litmus Tests
Focus on career federal judges as the near-exclusive pool of candidates for appointment to the Supreme Court has enabled both the right and the left to apply their conflicting litmus tests with equally unsavory intensity.
This screening for ideological purity is a recent and unfortunate change in the process for selecting Supreme Court justices. Before the nomination of Robert H. Bork in 1987, the nomination and confirmation focused primarily on whether the nominee possessed the necessary learning and experience to be a justice.
While Republican presidents tended to nominate Republican candidates, and Democratic presidents followed a similar practice, party affiliation was not a proxy for predictable ideological rigidity. During earlier generations, both parties harbored members from across the spectrum of left, right, and center.
However, when Bork was nominated, the liberal majority that had dominated the court since the Warren years was shrinking, and Republican presidents sought to appoint more conservative candidates.
Bork was viewed as a threat to the viability of Roe v. Wade. Personal attacks on Bork’s approach to constitutional interpretation served as a novel ground to successfully block his appointment.
All of the 16 justices appointed since then, except Justice Elena Kagan, have been sitting federal appellate judges.
For candidates to be nominated by a Republican president, the Federalist Society carefully scrubs the opinions of federal judges to evaluate their conservative orthodoxy. For Democrats, it is organizations such as the American Constitution Society that apply the litmus test for reliably “progressive” commitment.
Then, once the president gets clearance to propose an ideologically acceptable judge, the senators from the other party, relying on the Bork precedent, seek to savage the nominee, searching to find some flaw—personal or ideological—that will justify a vote against confirmation.
As I’ve previously written, this is the wrong way to pick judges. Most prior nominations for chief justice were approved by voice vote, with no dissent, or with only three or four “No” votes.
But there were 22 votes against the confirmation of Chief Justice John Roberts.
Moreover, the four most recently appointed justices, Justices Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson, had their nominations approved with slim margins of just 9, 2, 4, and 6 votes, respectively. Thus, by the time they took their seats, a significant segment of the public had been conditioned to view them as dishonorable, deceitful, or deluded.
Process Undercuts Decision-Making Quality
Drawing Supreme Court justices exclusively from the ranks of career judges also has undermined the quality of decision-making and thus contributed to the erosion of public confidence.
During his confirmation hearings, Roberts famously said that his job was “to call balls and strikes.” This misleading analogy ignores the nature of the Supreme Court’s work. Cases reach the court because there is no clear answer about where the strike zone is.
Determining the meaning of constitutional provisions guaranteeing “due process of law” or “equal protection of the law,” or prohibiting “unreasonable searches and seizures”—or protecting privacy—requires the justices to make profound value judgments about our national polity.
I contend that a substantial majority of the court should arrive with the stature and experience that would enhance the public’s trust in the court as an institution and enrich its internal debates.
When Justice Thurgood Marshall died, Justice Sandra Day O’Connor (a former Arizona state senator) noted how she had been influenced by the illuminating stories Marshall told during the court’s conferences about his experience as a civil rights lawyer in the Deep South.
It reminded a friend of mine of an occasion when, as a young law clerk, he participated in a discussion with then-Circuit Judge Marshall, who interrupted a clerk’s theoretical analysis of what constituted a coerced confession, saying, “If you want to know if a confession is coerced, tell me how big the cop was.”
That type of practical wisdom is lacking in today’s Supreme Court. Each justice brings to the decision-making process the product of personal and professional experiences. If their career experience is both limited and no different from that of their colleagues, it adds nothing to the discussion or the decision.
Nomination Process Must Be Changed
To accomplish the dual goals of restoring the public confidence in the work of the Supreme Court and providing it with a group of justices with diverse backgrounds, Congress should use its authority over the size and composition of the Supreme Court to enact legislation requiring that some vacancies must be filled by lawyers who have distinguished themselves primarily in elective office, in government administration, or in private law practice, and limiting the number of sitting federal judges who may be promoted to serve on the court at one time.
Public confidence in the work and integrity of the Supreme Court is too important to continue a practice of selecting nominees who lack the stature and intellectual nuance necessary to instill public confidence that they will carry out their judicial responsibilities with an open mind.
They should not be selected because their principal qualification is that they demonstrably have pledged allegiance to the ideology of the most extreme wing of the party of 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 US for criminal and national security matters, counsel to the Watergate special prosecutor, and president of the District of Columbia Bar.
Write for Us: Author Guidelines