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THE CONSERVATIVE REVIEW - April 16, 2010

No (Political) Experience Required
by George Will

WASHINGTON - Stiffening their sinews and summoning up their
blood, pugnacious liberals and conservatives who relish
contemporary Washington's recurring Armageddons are eager
for a summer-long struggle over Barack Obama's nominee
to replace Supreme Court Justice John Paul Stevens. They
should pause and ponder how recently and radically the
confirmation process has changed.

By 1939, the Supreme Court had been embroiled in political
controversy for half a decade. It had declared unconstitut-
ional some important New Deal policies, and FDR had
reciprocated by attempting to "pack" the court by enlarg-
ing it, which had earned him a rebuke in the 1938 elect-
ions. Yet when on Jan. 5, 1939, he nominated Felix Frank-
furter to fill a court vacancy, the Harvard law professor
sailed through Senate hearings and the confirmation vote
in 12 days. It was a voice vote, with no audible dissent.

On March 20, FDR nominated William O. Douglas to fill
another vacancy. Although the 40-year-old Douglas had no
judicial experience -- he was chairman of the Securities
and Exchange Commission -- and would be the youngest
justice in more than a century, he was confirmed 15 days
later. No witness testified against him.

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Linda Greenhouse of The New York Times notes that when
Stevens was nominated in 1975 to fill the first vacancy
since the 1973 Roe v. Wade decision, he was asked no
question about abortion during his confirmation hearing.
He was confirmed 98-0, as was Antonin Scalia in 1986.
Things changed the next year, when Ted Kennedy used a
demagogic Senate speech to launch a successful liberal
crusade against Robert Bork.

As Stevens departs, the eight remaining justices are all
products of the Harvard, Yale or Columbia law schools;
all are former federal judges. Professor Terri L. Peretti,
a Santa Clara University political scientist, notes (in
Judicature, Nov.-Dec. 2007) that the court has often
included judges with political experience.

The greatest justice, John Marshall, who made the court
a nation-shaping force, had been a state legislator and
congressman. Between 1789 and 1952, most justices had
some legislative or executive political experience. Chief
Justice William Howard Taft, a former president, was
followed by Charles Evans Hughes, a former New York
governor. Hugo Black had been a senator from Alabama. Earl
Warren had been California's governor, which became a
problem: Because President Eisenhower, like many others,
believed that political thinking sometimes supplanted
jurisprudential reasoning in Warren's decision-making, he
sought judicial experience in his remaining four nominees.

In 1971, Richard Nixon nominated the last two justices
without such experience, William Rehnquist and Lewis
Powell. The last justice with experience in elective
politics was Sandra Day O'Connor, who had been an Arizona
state legislator before becoming a judge. Bill Clinton
seriously considered four prominent politicians for Supreme
Court nominations -- New York Gov. Mario Cuomo, Secretary
of Education and former South Carolina Gov. Richard Riley,
Secretary of the Interior and former Arizona Gov. Bruce
Babbitt and Senate Majority Leader George Mitchell.

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Peretti believes that when, with the 1954 Brown decision,
the court began the dismantling of segregation, Warren's
political skills were apparent in the unanimity of the
decision as well as the fact that it was "short and non-
legalistic" and was "a public appeal" accessible to a broad
public rather than "a cogent legal argument whose reasoning
lawyers and academics would admire." But although the court
played a crucial role in overturning the South's social
structure, the need for such a dramatic judicial role is
rare and there is no visible occasion for it today, so
there is slight need to select politically experienced
justices.

Conservatives spoiling for a fight should watch their
language. The recent decision most dismaying to them was
Kelo (2005), wherein the court upheld the constitutionality
of a city government using its eminent domain power to
seize property for the spurious "public use" of transferr-
ing it to wealthier interests who will pay higher taxes to
the seizing government. Conservatives wish the court had
been less deferential to elected local governments.
(Stevens later expressed regret for his part in the Kelo
ruling.)

The recent decision most pleasing to conservatives was
this year's Citizens United, wherein the court overturned
part of the McCain-Feingold campaign finance law. The four
liberal justices deplored the conservatives' refusal to
defer to Congress' expertise in regulating political
speech.

So conservatives should rethink their rhetoric about
"judicial activism." The proper question is: Will the
nominee be actively enough engaged in protecting liberty
from depredations perpetrated by popular sovereignty?

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