The news that Justice Stephen Breyer will be retiring has brought to mind something that has been bothering me for years with regard to the Supreme Court selection process. Too many are selected who are judges sitting on a lower court.
The selection process has gone amiss in the last 20 years or so. Time for the tide to turn.
Placing the message in perspective, 8 of the 9 Justices presently sitting have been judges on a lesser court before rising to the Supreme Court. The one exception is Elena Kagan.
The selection process has tended to experienced jurists for 2 reasons.
First, Senate members having the responsibility of approving a President’s nomination wanted to know without question a selectee’s prior thinking on certain issues. What better way than to have their opinions from the lower court available for review.
I have always though the thinking of the Senate was off base in this regard. Lower court judges are required to follow precedent. What the Supreme Court said in an earlier case. Not much thinking involved there. Especially since once such a judge is elevated to the Supreme Court, he/she can change precedent.
The other is that out of the blue the Senate decided it was important to have Justices trained for the job. Not a brilliant decision in itself.
Twenty years on a lower court may have taught a new Supreme Court Justice how to write a decision. It has not taught such a judge to recall everyday experiences from the past. Their hearts and the understanding of people’s problems long buried in the everyday grind of legal thought.
Though learned in the law, lower court judges have been away from the everyday problems people face. Whatever experiences they may have had personally or have seen clients experience, is long forgotten. Replaced by technicalities in wording.
The Supreme Court was founded in 1790. Since then 120 persons have sat as Justices. Since 1900, 41 have been without prior judicial experience. The 41 included many who left enviable records as superior Justices. The 41 include William Rehnquist, Lewis Powell Jr., Abe Fortas, Byron White, Arthur Goldberg, Earl Warren, Tom Clark, Harold Burton, James Frances Byrnes, William O. Douglas, Felix Frankfurter, Harold Fiske Stone, Louis Brandeis, and Charles Evans Hughes. Time will tell if Elena Kagan makes her mark
Names from a more distant history include John Marshall and John Jay.
Many were politicians or political servants.
Some were exceptional influences on the Court. Without Earl Warren, there would have been no Brown v. Board of Education. Felix Frankfurter and Louis Brandeis were legal geniuses without compare. William Howard Taft a former President of the United States.
Rather than great legal minds, what is needed is someone who grew up relatively poor, was buried in student loans, had trouble putting food on the table, making mortgage payments, etc.
Experience/tragedy/hard times are great teachers. However only while fresh in the minds of the nominees and/or not buried behind the clutter of too many cases heard and too many decisions rendered in the lower court.
Stacy Abrams is an example of that which I write. Though in referring to her, I am not recommending that Biden appoint her. The appointment his headache, not mine.
In April 2018, Abrams wrote an op-ed for Fortune Magazine. She revealed she owed $54,000 in federal back taxes and $174,000 in credit card and student loan debt.
Abrams was repaying the IRS incrementally on a payment plan after deferring her 2015 and 2016 taxes, which she stated was necessary to help with her family’s medical bills.
In 2019, she completed payment of her back taxes to the IRS in addition to other outstanding credit card and student loan debt.
Again, I am not saying or recommending Abrams for Breyer’s seat. What I am recommending is that serious consideration be given to one who has experienced hardship before rising to a position to be considered for the high position of Supreme Court Justice.
Enjoy your day!