As the New York Times’ Adam Liptak noted, for “the first time in its history, every member of the United States Supreme Court is a former federal appeals court judge.” And in the opinion of Chief Justice John Roberts, this is a welcome development. Despite the fact that some of the Court’s most groundbreaking decisions came from the extremely diverse Warren Court -- which included governors, senators and law professors -- the chief justice seems to think that having former federal judges serve on the bench helps to ensure decisions are based on “legal perspective” and not “policy” preferences.
Speaking two weeks ago at the University of Arizona’s law school, Chief Justice Roberts said that for much of the Court’s history, former federal judges were in the minority on the bench. He believes that this led to “the practice of constitutional law” being “more fluid and wide ranging…more in the realm of political science.” As former federal judges have taken a more prominent role on the Court, he continued, “the method of analysis and argument” has shifted to more “solid…legal arguments.”
These statements have sparked a bit of controversy however, especially among legal experts that claim his underlying assumption is flawed. As Northwestern University Law Professor Lee Epstein and his colleagues see it, former federal judges are no more inclined than former legislators to follow precedent and remove political considerations from their opinions. In fact, the recent Roberts Court, made up entirely of former federal judges, has been quite willing to ignore precedent for political ends -- see decisions in Ledbetter v. Goodyear and District of Columbia v. Heller.
The difference is that having justices serve on the bench with varying and diverse backgrounds increases the ability of those men and women to fully grasp the real world implications of their decisions. In fact, even former Chief Justice William Rehnquist, for whom Chief Justice Roberts clerked, was concerned with the lack of perspective provided by narrowing the selection pool to former federal judges.
As a former constitutional law professor himself, we hope that President Obama does not share this chief justice’s view. As AFJ President Nan Aron said in a statement the morning after his election, “the Obama administration should look to nominate individuals who come from diverse backgrounds and different experiences -- such as governors, attorneys general and state legislators.” But of course most importantly, President Obama should nominate people who will keep faith with our core constitutional principles of liberty, equality and justice for all.