3. Roberts Sets Off Debate on Judicial Experience

By ADAM LIPTAK

WASHINGTON

For the first time in its history, every member of the United States Supreme Court is a former federal appeals court judge. Chief Justice John G. Roberts Jr., in a lively and surprising talk a couple of weeks ago, said that development might be a good thing.

Over the life of the Supreme Court, its members were quite likely to be former governors, legislators, cabinet members, law professors and practicing lawyers. That mix of backgrounds and expertise might strike some as valuable, but the chief justice suggested that it tended to inject policy and politics into an area properly reserved for the law.

As late as 1972, when Chief Justice Roberts’s predecessor, William H. Rehnquist, joined the court as an associate justice, former federal judges were in the minority.

As a consequence, Chief Justice Roberts said, “the practice of constitutional law — how constitutional law was made — was more fluid and wide ranging than it is today, more in the realm of political science.”

Since then, Chief Justice Roberts continued, “the method of analysis and argument shifted to the more solid grounds of legal arguments. What are the texts of the statutes involved? What precedents control?”

That move, he said, has resulted in “a more legal perspective and less of a policy perspective.”

Chief Justice Roberts spoke at the University of Arizona’s law school on Feb 4. The next day, Justice Ruth Bader Ginsburg underwent surgery for pancreatic cancer. Justice Ginsburg plans to return to the court next Monday, but should there be an opening on the court in the near future, the chief justice’s musings about the proper background for his colleagues will carry weight.

If President Obama makes a selection for the court, he will confront what law professors have started to call “the norm of prior judicial experience,” and he may find it hard to resist.

But there are reasons to question the chief justice’s conclusions.

The political scientists who study such things say there is no empirical support for the notion that former judges are more apt to feel constrained by earlier rulings or to suppress their political views. “Former appellate court judges are no more likely to follow precedent or to put aside their policy preferences than are justices lacking judicial experience,” according to a study to be published soon in the University of Pennsylvania Law Review.

If Chief Justice Roberts was implying that the court became less political as the number of former judges on it rose, said Lee Epstein, who teaches law and political science at Northwestern and is one of the authors of the study, “the data don’t support it.”

And not everyone supports the idea that members of the court should have uniform backgrounds. The psychological literature demonstrates that “the more homogenous the group, the worse the quality of the decisions they make,” said Tracey E. George, a law professor at Vanderbilt and the author of a law review article about the consequences of promoting former judges to the Supreme Court.

Chief Justice Rehnquist, who was a Justice Department official before he joined the court and was the last justice without a judicial background, was also wary of having only former judges on the court.

“It would too much resemble the judiciary in civil law countries,” he wrote in 2001, referring to legal systems in which being a judge is a lifelong civil service career. “Reasonable people, not merely here but in Europe, think that many civil law judicial systems simply do not command the respect and enjoy the independence of ours.”

The trend toward looking mostly to the lower federal courts for Supreme Court justices started in the 1950s and was apparently prompted in part by complaints from Southern members of Congress after Brown v. Board of Education, the 1954 decision barring segregation in public schools.

The court that decided Brown included Chief Justice Earl Warren, a former governor of California; Hugo L. Black, a former United States senator; Felix Frankfurter, a former law professor; William O. Douglas, who had served as chairman of the Securities and Exchange Commission; and Robert H. Jackson, who had been the attorney general.

The Southern lawmakers, according to John R. Schmidhauser’s 1959 study of the court’s justices, urged President Dwight D. Eisenhower to appoint former judges who could be trusted to base decisions “upon ‘law,’ not ‘sociology.’ ”

Before Eisenhower’s presidency, about a third of the nominations to the Supreme Court went to sitting judges. Since 1953, more than two-thirds have.

Justice Frankfurter, writing in 1957, had a blunt assessment of this phenomenon. “The correlation between prior judicial experience and fitness for the functions of the Supreme Court,” he said, “is zero.”

Chief Justice Roberts, in his remarks in Arizona, said his court was “very diverse in terms of the experiences people bring.” Justices Ginsburg, Stephen G. Breyer and Antonin Scalia all taught law before becoming judges. Justice David H. Souter was New Hampshire’s attorney general. The chief justice and Justices Anthony M. Kennedy and John Paul Stevens all had substantial careers in private practice.

On the other hand, “over the entire course of the court’s history, all but two justices, Breyer and Ginsburg, worked at one time or another in private practice,” according to a 2003 study in the California Law Review. Since then, the court has added a third such member in Justice Samuel A. Alito Jr.

Chief Justice Roberts did say that the current justices’ limited trial court experience was “an unfortunate circumstance” and “a flaw.” Chief Justice Rehnquist tried to remedy that by once appointing himself to the trial bench in Virginia during a Supreme Court recess.

“He heard a case and issued the opinion,” Chief Justice Roberts recalled, “and was promptly reversed by the Fourth Circuit.” He added, “Partly because of that, I can assure you that I am not going to appoint myself to the trial bench.”

February 17, 2009

New York Times