The Supreme Court Could Use a Few Good Politicians
(Bloomberg Opinion) -- If the nomination of Brett Kavanaugh to the Supreme Court is confirmed, he and his fellow justices will all be graduates of Ivy League law schools: four from Harvard, four from Yale and one from Columbia. Five have been clerks for Supreme Court justices and seven served on a U.S. Court of Appeals.
All nine would have something else in common: none ever faced a voter.
For much of its history, the court drew benefits from having members with practical political experience. Now the focus is solely on judicial heavyweights.
The last justice who was a politician was Sandra Day O'Connor, a former Republican leader of the Arizona senate who was tapped by President Ronald Reagan in 1981 and stepped down in 2006. In the past dozen years, she could have taught her colleagues about the real world of politics on issues like campaign financing, redistricting and voting rights.
One of the wisest men I've ever known was the late Abner Mikva. He was a Supreme Court clerk who was elected to the Illinois legislature and the U.S. Congress before sitting for 15 years on the U.S. Court of Appeals in Washington — the same bench that produced Kavanaugh, Chief Justice John Roberts and two other members of the current Supreme Court.
Mikva frequently observed that his years in elective office enhanced his appreciation for the impact that judicial decisions have on people's lives. That's a critical need for the Supreme Court, Mikva would say, noting that issues that come before it often are "more about policy than the law."
Perhaps the best illustration of the benefits of this kind wisdom was former Chief Justice Earl Warren, who served from 1953 until retiring in 1969. A former governor of California and Republican vice presidential candidate, his legal credentials were thin when tapped by President Dwight Eisenhower. But in 1954 he utilized his political skills to forge a unanimous decision in the Brown v. Board of Education school desegregation case. That was one of the Court's great rulings, made more powerful by its unanimity.
That's not going to happen in today's climate. But a look at some of the court's actions over the past decade shows how an O'Connor, Warren or Mikva would add value to the justices' deliberations.
Start with the Citizens United decision of 2010, where in the name of free speech the court unleashed billions of special-interest dollars into federal election campaigns. Justice Anthony Kennedy, whom Kavanaugh would succeed, wrote the opinion, which downplayed concerns that wealthy spenders would get special access to government officials and thus erode public confidence in the political system. He argued naively that mere disclosure of donations would solve the problem.
"With the advent of the internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable," Kennedy wrote.
An experienced politician would have known what Kennedy apparently didn't: that disclosure was a fraud. Already, the Federal Elections Commission had gutted contribution disclosure requirements. Since then there have been torrents of secret donations known as dark money. If she'd still been on the court, O'Connor, who publicly criticized the Citizens United decision almost from the moment it was issued, could have explained this.
Some of today's justices don't appear to understand the connection between money and politics, however experienced they might be at parsing constitutional questions. In a series of decisions going back nearly two decades, the Supreme Court has virtually legalized forms of political corruption that fall short of naked bribery.
Consider then the approach of former Representative Mick Mulvaney, President Donald Trump's budget director. Speaking to bankers at a Washington conference in April, he said that when he was a member of Congress he would only meet with lobbyists if they were campaign donors.
"If you're a lobbyist who never gave us money, I didn't talk to you," Mulvaney explained. "If you're a lobbyist who gave us money, I might talk to you."
If 435 members followed that practice — and more than a few do — only the big givers would have access to the "people's body." Many experienced politicians would consider the practice corrupt. But Supreme Court rulings would make it difficult or impossible to make laws against it, if Congress were so inclined.
The tricky legal debate over political gerrymandering — constructing legislative districts to give one political party an advantage — would also profit from the participation of savvy political practitioners. Last month the court sidestepped deciding a Wisconsin gerrymandering case on the grounds that plaintiffs hadn't shown that they were individually harmed by statewide maps meant to give their opponents an overall political advantage.
"None of these justices know what it's like to be targeted by gerrymandering," said Samuel Wang, a Princeton University neuroscientist who has studied redistricting.
A Supreme Court with all politicians and no legal intellectuals would be unhealthy. So is the reverse.
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