Paul Nitze: Seeking justice in the High Court |

Paul Nitze: Seeking justice in the High Court

Paul Nitze
The Aspen Times
Aspen, CO Colorado

One of the flimsiest themes to come out of this year’s Supreme Court sweepstakes is the notion that this is an intensely “personal” choice for President Obama. Some Court watchers want us to imagine our brainy president, the former Harvard Law Review editor and University of Chicago professor, curled up in his library, dreaming of who will be his Justice Harlan or his Justice Brandeis.

Wipe that image from your mind on the off chance it was there. Just because the president knows the work of the Supreme Court better than any president in history doesn’t mean this pick will be any less political or more adventurous. All the usual issues are in play, like who can get through the Senate, who will be supported by the key interest groups, and who has paid all her taxes.

So the hope that Barack Obama will bring a special independence and sense of mission to this process hasn’t been fulfilled. What we are going to get from this White House are safe, highly qualified nominees. No surprises, nothing outside the box. In fact, since the day Justice Stevens announced his retirement, we’ve known that the seat will almost certainly go to one of three people: Elena Kagan, Diane Wood or Merrick Garland.

All are brilliant lawyers, and all are eminently qualified to sit on the Supreme Court. But none would have as much freedom to move, ideologically, as many nominees have had in the past. None would bring much political experience to the high court. None would bring much of a constituency along with her.   

When Sandra Day O’Connor came to the Broadmoor Hotel in Colorado Springs for the 10th Circuit judicial conference, she was greeted like a movie star. That was in 2006, a year after she’d stepped down. To this day, O’Connor’s popularity dwarfs that of any sitting justice. She’s written two best-selling memoirs and gets stacks of fan mail every week.

She’s almost certainly better-loved by non-lawyers than by those who’ve studied her record on the Court. Lawyers gripe about her willingness to throw out precedent in favor of pragmatism. She was known to use whichever jurisprudential tools suited her in that particular case, and to compromise in ways that gave little guidance to lower courts.

So how to explain her popularity today? So far as I can tell, most Americans were and are captivated by her story – they appreciate her as an icon of the American West, as a warm and funny personality, and as the first woman on the Court. They couldn’t care less about the means by which she reached her decisions, just the results. And those results were pragmatic and politically astute.

O’Connor was a judge before President Reagan nominated her, but she’d also been an Arizona state senator. And her first judicial job, as a trial judge, was also elected. That political experience was profoundly important in guiding her work on the Court, and explains why she’s so popular today.

President Obama would be wise to think of why America loves Sandra Day O’Connor as he makes his choice, which is due any day now. He has the mandate to pick someone to O’Connor’s left, but he’d do the country a favor by picking a current or former politician, or someone who’s worked mostly outside of the Beltway.

Presidents used to draw talent from a much wider pool than they do today. The president has the personal authority to make an unorthodox pick by dint of his background, and he has the votes in the Senate to push that pick through. Next year he may not have those votes.

It’s no use claiming, as Justice Roberts did during his confirmation hearings, that judges just call balls and strikes. Supreme Court justices do not call balls and strikes – sometimes they’re behind the plate, sometimes they’re at the plate, and sometimes they’re on the mound. As Congress slows down, policy-making at the Court is speeding up. The Court is intruding in the legislative function to an unprecedented degree – think of the recent decision on election spending.

At the same time that the Court is throwing its weight around, it is increasingly sealed off from public opinion. It is in danger of losing its legitimacy. Alexander Bickel, a famous law professor, called it the “least dangerous branch,” a line he got from Alexander Hamilton. Most Americans have agreed with that label, but maybe not for long.

About this time last year, I got on my soap box to complain about the inane doublespeak that is the norm at Supreme Court confirmation hearings. I have now given up hope that we will learn anything about the president’s nominee during this summer’s Judiciary Committee gabfest. What I’d settle for instead is a nominee who breaks the mold, and who could take a spot in the popular imagination as one of their own.