Another Supreme Court nominee, another Senate confirmation silly season! Presumably, we will soon be treated to a summer of predictably probing questions about the nominee’s judicial philosophy and equally predictable non-answers on her part. Presumably also, when all the predictable posturing on both sides is over and the noise has died down, she will be confirmed by an equally predictable margin. And who is to say what kind of Justice she will turn out to be in the end? Who is to say that she won’t in the end turn out to be a wonderful choice for the country?
There is, it seems to me, at least one indubitable merit to her nomination. For the first time in quite a while, someone is being nominated who has not been a judge. In the past, of course, this would hardly have raised any eyebrows. One recalls, for example, that icon of judicial activism, Earl Warren, former Republican politician and Governor of California, who had never been judge before being appointed to the Supreme Court by President Eisenhower. And, however one evaluates them on other grounds, Sandra Day O’Connor’s opinions and general judicial philosophy certainly reflected – and were enriched by - her own prior experience as a politician and state legislator.
Given the enormous power wielded by this unrepresentative, anti-democratic, elitist institution, the least we as a country should hope for is that, in its composition, the Court might be in some serious sense somewhat more representative of our society’s values in all their diversity. So, while I applaud the nomination of someone who has never been a judge, I rather regret that the appointment is so unrepresentative in other respects. Assuming her confirmation, she will be one of 4 Supreme Court Justices who consider themselves New Yorkers – interestingly one each from 4 of the 5 boroughs. New York is, of course, a much more diverse a place than many non-New Yorkers who know so little about the real New York give it credit for. More problematic than the New York connection perhaps is the Ivy League background – not that there is anything wrong per se with being an Ivy Leaguer but that there are already enough of them on the Court. One is reminded of William F. Buckley’s famous line -something to the effect that he would rather be governed by persons randomly taken from the Cambridge telephone book than by the members of the Harvard faculty.
Of course, the real problem is the unrepresentative, anti-democratic, elitist character of the Court as an institution and the resulting damage done to our political life in recent decades by its decision-making in matters more properly left to the political branches. Accepting that as a given, however, it would certainly be helpful if the Justices’ background, education, previous careers, and general life experience were more diverse and more widely reflective of American society, more respective of the diversity of our citizenry and their values.