A new vacancy on the Supreme Court means a new round of political theater over the beliefs and qualifications of the president’s eventual nominee.
But what does it mean for a Supreme Court justice to be “qualified?” The Constitution is silent on the question, and there’s not much to take from the framers either. To the extent that “qualified” means anything to most people, it’s that the nominee has ample experience on the bench, a standard in keeping with the idea that the court is the final rung on the meritocratic ladder for judges and other legal elites.
If significant experience as a judge is what it means to be qualified for the Supreme Court, however, then most iterations of the court have been patently unqualified. Of the 108 men (and two women) to have served on the court before 2007, according to the legal historian Henry J. Abraham in his history of Supreme Court appointments, 26 had 10 or more years of experience on any court, state or federal. Thirty-eight justices had no judicial experience, and the remaining 46 had only token experience adjudicating disputes from the bench.
Abraham notes that “many of the most illustrious members of the Court were judicially inexperienced,” among them eight of the 16 chief justices (leaving the interim chief John Rutledge out of it): John Marshall, Salmon P. Chase, Morrison R. Waite, Melville W. Fuller, Charles Evans Hughes, Harlan F. Stone, Earl Warren and William H. Rehnquist.
On this point, the extensive judicial experience of the current court makes it unusual compared with its predecessors. Stephen Breyer, who announced his retirement last week, had been a federal judge for 14 years before he was nominated to the Supreme Court in 1994. Samuel Alito was a judge on the Third Circuit Court of Appeals for nearly 16 years before being nominated in 2005. Neil Gorsuch, Brett Kavanaugh and Sonia Sotomayor gave 11, 12 and 17 years to the federal judiciary. Justices John Roberts, Clarence Thomas and Amy Coney Barrett spent little time on the bench before their nominations to the court, while Elena Kagan never served as a judge.
By contrast, of the 12 people who served with Warren Burger during his 17 years as chief justice, only one — Harry Blackmun — had more than a decade of judicial experience. Burger, for his part, had been a judge on the D.C. Circuit Court of Appeals for 13 years before he was nominated to be chief justice by President Richard Nixon in 1969.
A qualified nominee, in other words, is not necessarily a judicially experienced nominee. Looking at the entire history of the court, you could almost say that judicial experience is incidental to the making of a Supreme Court justice.
The Supreme Court, then, isn’t necessarily the capstone where you finish your illustrious legal career. It is, instead, just another political institution — insulated from the vicissitudes of ordinary politics, yes, but still operating within the boundaries of political life. And if the court is political, even sometimes partisan, then so too is the nomination process.
In choosing his nominees, George Washington looked for, among other things, men who would support his Federalist philosophy of government. His first appointment, John Jay of New York, was an ardent supporter of the Constitution and a steadfast defender of Washington himself. When Thomas Jefferson had his chance to fill a vacancy on the Supreme Court, in 1804, he made it clear that he would only nominate loyal Democratic-Republicans. His first nominee, William Johnson, was a 32-year-old South Carolina lawyer working in private practice. He was confirmed by voice vote.
Political considerations abounded in the nomination battles of the late 19th century. For example, to fill a vacancy left in 1887, President Grover Cleveland chose his secretary of the interior, Lucious Quintus Cincinnatus Lamar, a Mississippi native and former Confederate soldier whose nomination was a reward to the Democratic Party’s loyal supporters in the white South.
All of this was true in the 20th century as well, when justices were chosen for who and what they represented to the president and his political coalition as much as they were for any particular skill or legal acumen. William Howard Taft was, before the 1912 presidential election, worried that he would lose the Republican nomination to a restless Theodore Roosevelt. When, in October 1911, the death of Justice John Marshall Harlan left a vacancy on the court, Taft made his choice with the next election in mind. His nominee, Mahlon Pitney, was a prominent New Jersey Republican and state judge with a career of loyal service to the party. “Whether or not the selection of Pitney was decisive,” Henry Abraham writes, “New Jersey’s Republican delegation did cast its votes for Taft in the National Convention of 1912.” (Taft, it’s worth mentioning, would lose that election and then go on to serve on the Supreme Court himself.)
There are many more examples to pull from, but the larger point should be clear: to be “qualified” for the Supreme Court is simply to be the right person for the political needs of the moment. Sometimes, the right person has ample judicial experience. More often, he or she does not. What that person does have, however, is wide experience in public life. For most of the history of the United States, the path to the Supreme Court involved political work, a stint in public office or a prominent position in public affairs, as well as some legal experience.
The Supreme Court is not and has never been a place where peerless legal experts plug disputes into the Constitution and use their powers of mind to produce “correct” answers. “If the materials on which judicial judgments must be based could be fed into a machine as to produce ineluctable answers, if such were the nature of the problems that come before the Supreme Court and such were the answers expected, we would have IBM machines doing the work instead of judges,” Justice Felix Frankfurter wrote in a 1954 essay for The New York Times magazine.
For Frankfurter, who at the time had served on the Court for 15 years, the challenge of being a justice was the challenge of self-doubt and self-awareness. “Of course a judge is not free from preferences or, if you will, biases,” he wrote. “But he may deprive a bias of its meretricious authority by stripping of it of the uncritical assumption that it is founded on compelling reason or the coercive power of a syllogism.” He continues: “He will be alert to detect that though a conclusion has a logical form, it, in fact, represents a choice of competing considerations of policy, on which for the time has won the day.”
If there’s anything that might cultivate that attitude — this sense of trade-offs, compromises and the limits of one’s own perception — it is politics, public service and public office. (Frankfurter, for his part, served in the Taft administration, participated in the founding of the American Jewish Congress and was one of the founders of the A.C.L.U.) There is also something admirably democratic about choosing, to interpret the Constitution, people who have, at one point in their lives, been responsive to or responsible for the mass of ordinary citizens.
It is something we’ve lost in our current norms regarding the court, where members come from a handful of the same law schools, have some of the same kinds of experience and largely avoid any public-facing political work before donning the robes of a Supreme Court justice.
This might serve the vision of the court as a place where highly trained elites act as umpires calling “balls and strikes” — a vision, incidentally, that serves those who would use the court to impose a partisan and ideological agenda under the guise of “restraint” — but it doesn’t serve the public or, for that matter, our constitutional order.
Whoever President Biden nominates to fill the vacancy left by Justice Breyer will be qualified according to our current standards for education and experience. She will also fit the traditional standard of a person who meets the needs of the president and his coalition. And to the extent that Biden has been open about the politics and political optics of this nomination, I think he’s done a service to the public.
The Supreme Court does not exist outside of ordinary politics, and the justices aren’t members of a secular priesthood. Anything that makes this clear, anything that helps bring the court back down to earth where it belongs, is worthy of our support.
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