HOW HE SEES IT High Court needs more politicians

By NORMAN ORNSTEIN
WASHINGTON POST
The resignation of Justice Sandra Day O'Connor means more than the loss of the most visible centrist on the Supreme Court. It also means the loss of the only justice who has been an elected politician. O'Connor served in the Arizona Senate for five years, including time as majority leader. Is that sort of experience important?
Last year, at a remarkable seminar at Yale Law School, a group of former Supreme Court law clerks who served a half-century ago discussed the behind-the-scenes story of the 1954 ruling in Brown v. Board of Education. That decision, which took two years to reach, was unanimous in the end, spanning the full range of ideology on the court from William Douglas on the left to Felix Frankfurter on the right.
It could easily have been 5 to 4, given the issues at stake, the intensity of views and the breathtaking change the decision represented. Had the current court been serving back then, that probably would have been the vote, like so many other highly charged and controversial decisions of recent years.
What is the difference? The Warren Court in 1954 had five members who had been politicians: three former U.S. senators, one state legislator, and a former governor, Chief Justice Earl Warren.
Building consensus
The former clerks talked about the way the justices worked patiently to build consensus, not just a narrow majority. When it wasn't forthcoming the first time the case was up, they put it off until the next year. Liberals and conservatives alike understood how important it was for society, and for the court's credibility, to find that consensus and present a united front. That several justices had been schooled in an environment of coalition-building -- the legislative process -- was a key to that sensitivity and to the final result.
The Warren court of the 1950s was quite typical of American history up to that point, in that justices often came from political backgrounds. Only one of the nine justices in 1954, Sherman Minton, had served on a U.S. Court of Appeals, and he had been a senator before that. Contrast that with the current Supreme Court, on which seven of the nine justices have served on a federal court of appeals and one other served on a state court of appeals. The only current member without a background as a judge, interestingly, is Chief Justice William Rehnquist.
Why the change? Over the past 50 years, the federal courts have increasingly made public policy, from settling details on airborne emissions to intervening in disputes between telephone and cable companies to setting guidelines on abortion and sodomy. The increased policy role has come about because Congress has passed the buck on controversial decisions to the courts, and because judges have been eager to step in to fill vacuums. As our politics have become more ideological and more partisan, lifetime court appointments have thus become more important and valuable.
Choosing judges has taken on a heightened importance -- and presidents and their partisans want to make sure they know what they're getting. A track record at the federal appeals court level is a much safer predictor of behavior at the next level up than service in the U.S. Senate, or as a governor or in other political office.
Serious costs
But a court that consists largely or only of nonpoliticians has serious costs. Not only are judges less inclined to think broadly of the country and its social and political divide, they are more likely to look at decisions with tunnel vision, not thinking through the problems of maintaining the court's standing with the public and of implementing difficult and divisive decisions. Moreover, since much of what the court does is to sort out legislative intent, those without political experience have no real sense of how a legislature works and no direct idea of what legislative intent really means in the crucible of the legislative process.
With O'Connor gone, the court will have no politicians and only one member, Stephen Breyer, who has worked in a legislature, as a staffer. Most of the names floated as possible nominees are, predictably, judges on federal appeals courts.
It's time to expand the field to seriously consider people with political backgrounds. Former Sens. John Danforth and Warren Rudman would be superb choices. At least two current senators, John Cornyn of Texas and John Kyl of Arizona, fit the White House's ideological criteria. Harry Reid, the Senate Democratic leader, has mentioned other capable Republican senators, including Mike DeWine of Ohio and Lindsey Graham of South Carolina. Many others could also fit the bill.
X Ornstein is a resident scholar at the American Enterprise Institute