The Problem with Stealth Supreme Court Justices

In earlier describing Harriet Miers, the President's nominee for the Supreme Court seat being vacated by Justice Sandra Day O'Connor, as a "stealth nominee," I wasn't disparaging Miers' candidacy or qualifications for the Court.

When one considers it, Miers probably has more relevant experience for service there than O'Connor had when Ronald Reagan nominated her. The soon-retiring justice had been a state court judge in Arizona and before that, a member of the state legislature. Miers has been the senior partner in a major law firm, a member of a City Council, and counsel to a governor and a President.

It isn't essential that members of the Court have experience as judges. (In fact, the Constitution doesn't even require them to be lawyers, leading me to sometimes speculate on what would happen to the deliberations of the justices if they were leavened by the participation of non-lawyers.) Rehnquist, as has been pointed out many times today, wasn't a judge prior to his nomination for an Associate Justice slot in 1971. Earl Warren was a former California governor.

I've been reading the late Roy Jenkins' profile of Franklin Roosevelt's presidency and just last evening, went through his brief account of FDR's controversial plan to add one new justice to the Supreme Court for every then-sitting member who was seventy years of age or older. Of course, Roosevelt's plan, never really embraced by his own administration and ultimately rejected by a Congress overwhelmingly controlled by his fellow Democrats, was triggered by his frustration that the Court was ruling many of his New Deal prescriptions for the ailing US economy unconstitutional.

According to Jenkins, FDR would have been better off to have simply waited for the Court's membership to turn over, rather than expending precious second-term political capital on a futile battle. Within a short period, the President had what can surely be described as a Roosevelt Court:

In place of [Willis] Devanter he appointed the young senator Hugo Black. Then, in the next few years, Supreme Court vacancies occurred like November's falling leaves. The president was able to appoint his own solicitor general, Stanley Reed; Felix Frankfurter, a Harvard academic; William O. Douglas, an equally liberal Yale academic; Attorney General Frank Murphy; Senator James Byrnes of South Carolina, later to be Truman's not entirely satisfactory secretary of state; and Robert Jackson, Murphy's replacement as attorney general.

There are several points to this little history lesson:

1. The justices nominated and confirmed during Roosevelt's tenure fairly reflect the varied walks of life that have usually been represented on the Supreme Court. Black and Byrnes were politicians; Frankfurter and Douglas were scholars; Reed, Jackson, and Murphy were lawyers with political experience. They weren't all White House lawyers whose views were known only to those who served with them in the Executive Branch. All of these nominees had extensive public records whether in political decisions or legal scholarship. These were people who had taken sides and everybody knew what sides they had taken. That didn't prevent them from being confirmed.

2. The standards to which judges were held in those days were both more political and less ideological. It was assumed that Presidents would nominate people for membership on the Court who were more or less sympathetic to the President's basic philosophy.

In making these two points, I'm not criticizing this President Bush or his father for nominating stealth candidates to the Court. In the poisonous atmosphere which has often surrounded Supreme Court nominations over the past thirty years, Presidents have their reasons for offering up persons with scant public records who they believe will reflect their views, but not attract opposition or controversy on the way to being confirmed.

In John Roberts and Harriet Miers, the President has put forward two people with whom he and the members of his administration are familiar, but who don't have a boatload of "incriminating evidence" that potential opponents--on the right or the left--might use against them.

The result is a process in which little information is shared, the President and his administration winkingly ask their supporters to trust them, and an opposition, often driven by purely ideological motives, is frustrated.

Harriet Miers may be confirmed and she may turn out to be a great justice. She seems competent and hard working. But one day, a stealth nominee is going turn out to be a massive failure not because their judgments displease people, but because of incompetence which a strangely-constricted confirmation process doesn't surface.