Where Have All the Politicians Gone? Recruiting for the Modern SUPREME COURT

By Peretti, Terri L. | Judicature, November/December 2007 | Go to article overview

Where Have All the Politicians Gone? Recruiting for the Modern SUPREME COURT


Peretti, Terri L., Judicature


For most of U.S. history, Supreme Court justices have been involved in partisan elective politics prior to their appointments or have served in government, usually in a prominent and political position. Schmidhauser observed in 1959 that "political activism of a rather intense kind emerges as a necessary stage in career ascent to the Supreme Court" and has "been a virtual precondition for such an appointment."1

Of course, this should not be surprising given the importance of partisan and ideological considerations in the judicial selection process. Holding a high government office gives potential nominees credibility and is critical to drawing the attention of the president and Justice Department. Such experience might also be regarded as valuable training for the Court's function of deciding legal questions that are highly political and that must be implemented in a political environment. It furthermore offers a record of potential nominees' ideological views, allowing presidents to predict their future decisions more skillfully. These varied aims in recruiting for the High Bench are likely being under-served given that a striking shift has occurred in the occupational background of Supreme Court justices.

A leading study by Epstein, Knight, and Martin offers empirical proof of two recent developments-a norm of prior judicial service and, related to this, striking occupational homogeneity on the Court.2 Rather than following historical practice and nominating prominent politicians to the Court, presidents over the last several decades have used the courts, especially the federal circuit courts, as a primary and nearly exclusive recruiting pool.

This change can be starkly illustrated by comparing the early Warren Court with the current Court. In 1954, the Court was quite statesmanlike, containing a former governor of California (Warren), three U.S. senators (Black, Burton, Minton), two U.S. Attorneys General (Jackson, Clark), two high-ranking executive branch officials (Reed, Douglas), and a law professor (Frankfurter) who had also served in the executive branch and as an informal presidential advisor. Only one justice, Sherman Minton, was a U.S. court of appeals judge at the time of his appointment, and he had previously served both in the Senate and White House.

In contrast, every single member of the Court in 2007 came directly from the federal circuit courts. Additionally, no current justice served in a state or national legislature, held elective office, or occupied a Cabinet-level executive branch position. Several held sub-Cabinet posts, but typically as an attorney in the Justice Department. The latter positions certainly qualify as public service and are governmental in nature. However, they are not directly political and do not belong in the same category as legislators, governors, and Cabinet secretaries.

While hybrids and exceptions certainly exist, the Epstein et al. study offers a defensible categorization. The authors viewed justices as holding a "political" position when appointed if they were in an elective office in the legislative or executive branch or in a non-legal executive branch position, i.e., one not requiring legal training. Justices were regarded as holding a "legal" position upon appointment if they were serving as judges, government lawyers, in private practice, or in legal academia.

However defined, it is true, as Baum simply states the matter, that "there is less politics and more law in the backgrounds of justices than there used to be."3 According to Epstein et al., "[b]etween 1789 and 1952, the mean percentage of justices with some political background, either in legislative or executive politics, hovered around 65%" but has declined to 34 percent since 1952 (with a small drop with Roberts and Alito to); while a slight majority of the Court's members have possessed elective political experience, a disproportionate number of these

served early in the Court's history, when it was not rare for as many as two-thirds of the Court to have previously faced the electorate. …

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