When Ronald Reagan appointed Sandra Day O’Connor to the Supreme Court one credential stood out: her gender. Otherwise, O’Connor, who was a state judge and former majority leader of the Arizona State Senate, was similar to other 20th-century high-court nominees: Her career was a mix of electoral politics and judging. There were, of course, some pure scholars and jurists, such as Oliver Wendell Holmes or Felix Frankfurter. They sometimes sparred with justices chosen for success in politics, such as Earl Warren and William Howard Taft. And there were also justices with long careers in private legal practice, from Robert Jackson to Thurgood Marshall, to offer a third perspective on cases.
However, after O’Connor’s nomination, in 1981, a new pattern took hold. Of the 14 people nominated since then, only the ill-fated Harriet Miers had won an election — in her case, to a two-year term on the Dallas City Council. Miers was also among the few with extensive careers in private practice. Rather, the overwhelming model for a successful Supreme Court nominee is of a person heavily rooted in academia, and groomed through presidential appointments to lower courts and top Justice Department jobs.
One doesn’t have to speculate too much to understand why this particular resume has been so successful: Those who never enter electoral politics don’t register their views on abortion, the issue that is so toxic that senators feel obliged to use filibuster rules to block any nominee who represents the other party’s position. This demand — to find nominees who are supposedly without views on abortion rights — is an act of political convenience that is both dishonest (no views on abortion?) and dishonorable. It’s necessary to break this mold, before it harms the court any further.
With its single-issue litmus test, the Senate has effectively ruled out many of the experiences that have helped make previous justices attentive to all aspects of a case. And the allegedly neutral academic candidates for the high court have proven to be, with a few exceptions, far more likely to stake out inflexible doctrines than those whose edges have been smoothed by electoral politics.
In the academy, glory goes to those who craft and apply legal theories, to develop a consistent philosophy of constitutional interpretation. But there is more to judging than theory; academics impress with their brilliance, not their ability to discern justice. Those who have been exposed to electoral politics understand the need for a broadly acceptable result; they learn to balance ideology and pragmatism. Today’s justices, however, have formed a quasi-law-school faculty behind the pillars of the Supreme Court building, replete with warring factions; they are the most educated and sophisticated group of justices in history, but also the least sensitive to the human dimensions of their cases.
Supporting or opposing abortion rights in politics isn’t the same as believing or not believing in a constitutional right to abortion.
To fix this situation requires one major change: The willingness to accept candidates who have taken pro-life or pro-choice positions. It makes good sense, even for those most inflamed by the abortion issue, because supporting or opposing abortion rights in politics isn’t the same as believing or not believing in a constitutional right to abortion.
Nonetheless, at this moment of intense partisanship, urging senators to stop blocking nominees with past views on abortion may seem quixotic. But it shouldn’t be: A relatively small group of senators, willing to veer from their party’s line, can prevent a nominee from facing a filibuster. Under Senate rules, 41 votes are needed to block a nominee, so in the current alignment of 53 Democrats (including independents) and 47 Republicans, just seven Republicans or 13 Democrats can break the logjam. A model for compromise already exists for lower-court judges, hammered out by a bipartisan group of 14 senators back when Republicans were frustrated by Democratic filibusters of George W. Bush’s nominees. Republican leaders threatened to rule out all filibusters of judicial nominees as unconstitutional, on the grounds that the Constitution requires an up or down vote. Instead, the Gang of 14 came forward, promising to allow filibusters “only under extraordinary circumstances.”
Now, a different party controls the Senate and White House, and views on the filibuster are, presumably, reversed: Republicans consider it a vital tool, and Democrats are gritting in frustration. With expectations that Republicans may retake the Senate next year, and possibly the White House, this is an apt moment to lay down some neutral rules. If senators can’t compromise on when, and under what circumstances, to block Supreme Court nominees, they should take the route the Republicans were pushing in the Bush years, and rule out all filibusters of judicial nominees.
The Supreme Court would be fairer and more diverse because of it.