More on Law and Politics through the lens of my friend Jim Hewitt plus a “top ten” list to fix the problem

Jim Hewitt submitted a comment to yesterday’s post about Adam Liptak’s article in the Times entitled “The Polarized Court” and whether law is merely politics by another name. With a PhD in legal history, as an author published in the highly regarded legal history series “Law and the American West,” as a former President of the Nebraska Bar Association, as a former chair of the Fellows of the American Bar Foundation, as a former member of the ABA Standing Committee on the Federal Judiciary and with 50 or so years as a real practicing lawyer, Jim understands my concern about what is going on at the Supreme Court.

Jim writes: “I agree with your ideal [that law is not politics by another name], but all of my legal history studies leads me to believe that we are not grounded in reality in regard to the current situation. . . . I think Liptak makes the case.” If Jim Hewitt thinks that, we are in deep manure.

The current partisanship at the Supreme Court is, to say the least, disturbing. We don’t have anyone on the Supreme Court, such as Judge Richard Arnold, a Democrat when he ran for Congress and Ivy league elite, who could have written the Jaycees case for the Eighth Circuit holding that men had a First Amendment right of association to exclude women from a club despite Minnesota’s liberal insistence that such an exclusion was just not acceptable in this modern age. Ironically, Justice Brennan, for whom Richard clerked, wrote the opinion reversing Richard. Nor do we have anyone on the Supreme Court like Don Ross from the Eighth Circuit. A Republican partisan of the highest order before becoming a judge, yet eager and willing to write a stirring dissent asserting that President Clinton could not be sued while he served as a sitting President. Eschewing all practical reality, the Supreme Court thought Judge Ross was wrong.

The Federalist Society, the American Constitution Society, and our political parties have now seen to it that the order of the day at the Supreme Court is politics masquerading as law. That scares the living crap out of me.

Like all federal courts, the Supreme Court derives legitimacy from only one source and that source is the people. It used to be that the Court was revered by the people. No more.* In this regard, I urge everyone to read Eric Segall’s piece “Supreme Court puts its legitimacy at risk” CNN (May 12, 2014). (Hat tip to How Appealing.)  Segall notes the following which I find truly chilling:

Last week, a new poll by Greenberg Quinlan Rosner Research, a Democratic Party-allied pollster, for Democracy Corps set the social media world atwitter. More than 50% of those polled were reported to believe that the justices let “their own personal or political views influence their decisions,” and more than 70% said that the justices should have fixed terms, not life tenure.

But, it is not good enough to bitch. Unlike Segall, I don’t think term limits for the Justices is the answer. That would only make the problem worse–it would be a surrender to the idea that law is politics by another name. I have less radical ideas expressed hereinafter in my favorite literary format, “the top ten list.” I call it “Kopf’s Top Ten List on How to Fix the Supreme Court.”

Here you go:

10. No person will ever be appointed to the Supreme Court if she or her was a member of the Federalist Society. That is particularly true for federal judges.

9.   No person will ever be appointed to the Supreme Court if he or she was a member of the American Constitution Society. That is particularly true for federal judges.

8.  As the “first chair,” the nominee must have tried a case to a jury.

7.  The nominee must promise to hire all law clerks from what the elite refer to as “third tier toilet (TTT)” law schools.

6.  Republicans must nominate a criminal defense lawyer.

5.  Democrats must nominate a lawyer who worked in support of the Keystone XL pipeline or who defended the oil company as a result of the Exon Valdez disaster.

4.  No person who has ever served as a tenure track law professor is eligible to serve on the Supreme Court.

3.  Republicans must nominate a person whose personal view is “pro-choice.”

2.  Democrats must nominate a person whose personal view is “pro-life.”

1.  Unless the world will fall in, the nominee, under oath, must promise never to write or join in a dissenting or concurring opinion. That is, and above all else, the nominee will promise under oath to seek consensus almost all of the time.

I am serious.


*As the legitimacy of the Supreme Court tanks, I worry for the district courts and courts of appeal as well.  This is not an intellectual exercise for me.

27 responses

  1. I heartily support number seven, but I may be biased in favor of my quote TTT end quote school.

  2. I think that you are being even-handed and positing a false equivalence where it is not justified. It is not the case of “both sides do it.” Ever since the Reagan presidency, the Republicans have realized that the judiciary is the branch where the most long-term policy gains can be secured. To that end, every Republican president has appointed right-wing judges, some quite extreme, to all of the courts. Remember that even Nixon did not play such games with the courts, and (with an occasional exception–Carswell, Haynsworth, etc.) appointed mostly non-political judges.

    By contrast, Democratic presidents, alas not generally that interested in the courts, have appointed only moderate liberals, many of whom (e.g. Justice Breyer) are not really liberal at all. If Scalia, Alito and Thomas (and a host of others on the circuit courts) were replaced by ACLU lawyers, you would have a point. But until that unlikely event, the court system will continue to tilt sharply to the right, will continue to be pro-defendant, will continue to engage in fact-finding on summary judgment motions, and will continue to guarantee that the side with the money will almost always win. Republican presidents have not nominated conservatives; they have nominated Republicans, who are politicians first and judges second. And I challenge you to name one judge appointed by a Democratic president who leans as far to the left as these.

  3. Dear Judge Kopf, here’s another idea that for a long time worked well in New Jersey for the governor’s appointments to the New Jersey Supreme Court. I bet some other states that have a rough balance of power between the two parties have similar traditions: “No more than a bare majority of Justices will be a member of the same political party.” That guarantees that Republican presidents sometimes have to appoint Democrats, and that Democratic presidents sometimes have to appoint Republicans. Makes for some solidly centrist appointments based on merit. Of course, politicians are willing to do this only if the balance of power tends to swing back and forth between the parties (which is has historically done in New Jersey), such that the party in power now knows that it may not be in power in four years or six years or ten years (kind of like one reason that some people in the religious majority in the 18th Century saw fit to guarantee religious freedom for all, not just for those in power at the time).

  4. Richard,

    This is not a debate about which party is worse when it comes to picking judges. It is also not about which Supreme Court Justice, or which group of Supreme Court Justices, is more extreme.

    I used to be a staunch Republican before I was a judge (I have never voted since becoming a judge). The Republican party of today makes me puke. The party’s view about judges strikes me as heretical when examined from the orthodoxy of the Republican party that I embraced years ago. But, you have to be living in a world that I am unfamiliar with if you honestly believe that Ginsburg and Sotomayor, and to a lesser extent Kagan and Breyer, are not strongly driven by a liberal political orthodoxy that transcends legal reasoning as most real lawyers think of legal reasoning.

    Anyway, that’s my story and I sticking to it. All the best.


  5. Charles,

    What an interesting idea. Wouldn’t it be a breath of fresh air if the next appointment to the Supreme Court was someone from the party opposite who was universally regarded as centrist. In a single stroke, the President, whoever that might be, could take a giant step in restoring the people’s confidence in the Court.

    Thank you for your thoughtful suggestion. I appreciate the engagement.

    All the best.


  6. RGK, we do agree on a few things, particularly the insanity of today’s Republican party as it compares to that of decades ago. But I want to make a distinction between being an ideologue on the one hand, and having political leanings and beliefs on the other. The judges you name may indeed have liberal leanings, but they are not always determined to impose those views on the cases which come to the Court, and those views don’t always determine the outcome. OTOH, Roberts and Scalia’s reasoning varies with the result they wish to achieve. Bush v. Gore? Shelby County? The ACA case, where Roberts rewrote the Medicaid law? indefensible on any principled legal basis, all of them, and explicable solely on the basis of raw political power.

    Of course, the real issue is that at the Supreme Court level, there is no such thing as legal reasoning. IIRC, it was Justice Brennan who said “with five votes, you can do anything around here.”
    At the district court level, of course, you are far more constrained. But even there, discretion abounds. And at the Supreme Court level, it has always been thus.

    All the best to you too.


  7. Sir,

    I take issue with numbers 9 and 10, at least as regards law school chapters. Both seek to foster debate on the issues. We bend over backwards to make sure that both sides are heard.

    Plus you left off one. Nominate an American Indian to the Court. There have only been two Article III judges who have been American Indian, Judge Michael Burrage (Choctaw) and Judge Frank Seay (Cherokee, not enrolled). Judge Seay did not know he was Indian until after he had been on the bench. There is one nominee pending, Diane Humetewa (Hopi). There are plenty of Indians who are qualified, yet none have been selected.



  8. Chief Justice Taft was appointed and confirmed on the same day. I suppose politics had something to do with it but it may have just been common sense.

  9. How about this criterion:

    Must have held a job outside of law for at least 2 years since turning 21.

  10. ExCop-LawStudent ,

    You are partially right. I am willing to amend 9 and 10 to exclude law student chapters. Every law student should experiment.

    I am not big on nominating folks because of their gender, color or ethnic background. (But, then again, I am a 67 year old white guy of German heritage who grew up in the Midwest when there was still a middle class–and I think more of me would be a fine thing.) That said, if we are going down that path, Native American nominees are certainly worthy of greater consideration.

    Thanks for your engagement. All the best.


  11. Peter H.,

    Good idea. By the way, working for AP parts bending steel pipe while being a member of the Teamsters, and chasing down trains for the late lamented Pennsylvania Railroad while being a member of the Brotherhood of Railway and Express Clerks, taught me a bunch about people. Thanks for the suggestion.

    All the best.


  12. Richard,

    Several things about Justice Brennan and your comment:

    1. Brennan was nominated by President Dwight Eisenhower, a member of the Republican Party, who I greatly admire.

    2. I do not agree with Justice Brennan’s penchant for weak legal reasoning to implement his strong progressive views as exemplified by his comment that “with five votes, you can do anything around here.” THAT is precisely the problem presently.

    3. It is true that at the district court level that I am “far more constrained.” I like that. But, while such constraints must weaken as you go up the judicial ladder because legal doctrine must never be static, in a Democratic society all judges, including the Justices, must be constrained by something other than their own personal views. Otherwise, there really is no “law.” I know this is very simplistic, but that’s me in spades–very simple. I suppose that comes from sending bills to clients.

    4. Using conventional legal reasoning, the ACA case was a slam dunk in favor of the law. In the end, the Chief’s impulse was correct, but his reasoning, particularly about imposing upon the states, was tortured. How I wish the Chief would have had enough persuasive power to bring along Kennedy and perhaps Alito with him. Scalia and Thomas are hopeless. If Roberts has any sense, as he matures, he will do his best to marginalize them.

    Thanks for the engagement. All the best.


  13. Ah, but the law is never value-free, Holmes’s “brooding omnipresence in the sky.” Our collective values and hence, our collective political view of the world, must in the end determine what the law is. I fear that you long for a near-utopian vision. The courts are, and must be, reflective of the society which maintains them. How can it be otherwise? When, as now, our society is fearful and increasingly ignorant, the courts are hardly better. For me, I am grateful when judges act with independence (especially with respect to the government), and disdainful when they don’t, whether I agree with them or not.

    Actually, on a practical level, I think that the only people who should be judges are lawyers who have tried cases and actually sent bills to clients. Far too many former prosecutors….

    By the way, did you know that the only Senator who voted against Brennan was Joe McCarthy, a fact which Brennan always boasted about?

    You do have a generous spirit, and the existence of this blog exemplifies it. That certainly sets you apart from so many of your brethren.

    All the best.


  14. Well, Number 1 would have excluded Holmes, a fragment of whose dissent in Abrams v. U.S. I used to carry around in my wallet. So that wouldn’t work.

    Finley Peter Dunne’s Mr. Dooley observed that, “No matther whether th’ constitution follows h’ flag or not, th’ Supreme Coort follows th’ election returns.” And so it does, meaning that in the largest sense the court reflects the country. And for most of the past half-century, the country has been deeply divided. More recently, that divide has been hardened and exacerbated by rapid social and economic change that has much advantaged some and disadvantaged and displaced many others. As we can see from other historic eras (think the Industrial Revolution and the enclosure movement in Britain or the late 19th century in this country), such conditions encourage radicalism and rigidity. Partisanship is elevated, compromise derided, and large vision is in especially short supply. (As far as I’m concerned, from Lyndon Johnson until the present occupant of the Oval Office, we have had only little men as presidents. And the present occupant seems determined to limit his larger vision.) Not fertile ground for the growth of a talented, professional judiciary.

    So perhaps we should not be surprised that the Supreme Court (and lower federal courts) are partisan and, maybe worse, lack vision.

    There are other factors at work, too. I have long thought that one of the reasons that lawyers get so little respect is that, too often, we want to be thought of as professionals, but we act like businesspeople. Think of firms that charge clients for every page copied. Somehow, the craftsmanship has largely gone out of legal practice. (As I write that, I think that I am probably guilty of foreshortening–that craftsmanship has always been in short supply. Very likely.) Again, not good ground for developing our judiciary.

    I have written before on these pages of result-oriented jurisprudence, and it is a plague. Naturally, we recognize the disease when its results appall us, less often when they prove agreeable. But we should be on guard against the tendency, wherever it leads. In my mind, it led to the Citizens United case and to the equally regrettable campaign-finance case this year. (As Prof. Paul Freund–whom I was privileged to have for Con Law–observed, “They say money talks. I thought that was the problem, not the solution.”) The tendency to see how the case should come out and then reason to that point AND NOT TO REALIZE THAT THAT IS HAPPENING is the single greatest vice of the legal system. I don’t believe it can ever be rooted out completely, but we should always try to limit it.

  15. Richard,

    I did not know about McCarthy’s vote. I was 8 during the Army-McCarthy hearings. Those hearings were televised. I watched them with my father. My dad, who was a very strong Republican, thought McCarthy was a very bad person.

    All the best.


  16. Judge Kopf–

    I think it’s a very interesting list. Should you ever decide to lengthen it, perhaps you could add a requirement that the candidate be able to write an essay that would allow someone utterly untrained in the law to understand a very complex case.

  17. I would’ve added one: the nominee must have represented a real PERSON in a real courtroom. I think you were getting to this with the jury trial, but I can see some career prosecutor saying that they did that to meet the requirement, which really doesn’t get to the heart of it. People who spent their time representing only the government or only businesses haven’t been on the receiving end of the power if they haven’t stood at the table while their client leaves by the back door. I think that leads to a fatal lack of perception.

  18. David,

    Yes. Incidentally, I think Justice Breyer does a wonderful job of writing simply and clearly.

    All the best.


  19. Rob,

    I wouldn’t throw out prosecutors, or lawyers who represent corporations, if they have first chaired a jury trial. However, I agree that we should give bonus points to the lawyer who has first chaired a jury trial representing a human being.

    All the best.


  20. Jon,

    You are so right. Picking the end result and then writing something that produces that result is not only intellectually dishonest, but it can become an insidious infection. The terrible thing is that the patient does understand the he or she is sick. I must confess that I have been infected with this disease, but I have done my best to beat it back. The best way to do that is to begin the opinion not knowing where it will end up.

    Thank you for your most perceptive comment. All the best.


    PS As much as I revere Holmes, I could live without his brilliant personal expositions if he and his brethren would try to meet each other in the middle most of the time.

  21. Sir,

    Thank you. Helping to organize and plan some of the debates that we’ve had at our campus has been very rewarding. I would also note that both the Federalist and ACS seem to work well together where I’m at, so both sides are represented.

    I also don’t like set-asides, quotas, affirmative actions, etc. in most cases. I would point out that American Indians have only made up 1/20 of one percent (0.05%) of the Article III judges in history. I would just like to see this rectified.

    Respectfully, ECLS

  22. In the immortal words of Bill Clinton, “Ah feel yore pain.” I have remained in a subversive role in the Republican Party (I am also pre-Moron Majority), but I recognize that it is almost as futile as trying to persuade judges to follow the law. If you want bat-guano CRAZY, attend a state convention.

  23. CJ Roberts’s decision in the ACA case may well have been an echo of the actions of the other Roberts–the “stitch in time that saved the Nine.” Even he gets the obvious fact that SCOTUS, the appellate courts, and even the TTT have squandered their reservoir of legitimacy. If he keeps the RATS wing intact and strikes the ACA down, any pretense of impartiality would be gone. That was a strategic withdrawal, having nothing to do with the rule of law, because Roberts has shown exactly no respect for it in any other context.

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