Almost everyone who practices law, and particularly those who spend a fair amount of time doing appellate work, flinches a bit when the first thing discussed when a vacancy arises on the Supreme Court is some perceived need for the President to fill some geographical, ethnic, or sexual criteria or to try to predict how a particular appointee might "vote." Even the idea that cases are decided by a "vote" and that justices opinions are based on their political beliefs seems so wrong and does not always comport with what happens when cases reach the Court.
But this is what always happens. Listening to and reading all that is dispensed on the subject makes a person think that the Supreme Court is not that much different than the Congress and that Justice Stevens, say, is sort of the Minority Leader in a "house" whose "Speaker" is the Chief Justice.
It's not true, of course, as is known by anyone who regularly reads the opinions of the Court or hears its arguments. That the Court would not permit the previous president to set up his own form of quasi-military justice and then argue that it was not subject to federal judicial review since the "trials" were to be held in Cuba was not as surprising to those who have some understanding of how the Court actually operates, but seemed to shock those who see nothing more than 4-4 and Justice Kennedy on every case.
Still, the purists are not exactly right either. There has always been a political component to the Supreme Court almost from its first days. The tensions between President Jefferson and Chief Justice Marshall for instance, so well chronicled by Dean James Simon, led to the Court's arrogation to itself, based on its right "to say what the law is" to overrule Congress and the Executive and, by determining that a law duly enacted violates the Constitution, forbid its enforcement or application.
That was a remarkable "power grab" in today's language. far closer in concept to the royal prerogatives of England than those who led our country to separate from the colonial power might have imagined. That the case itself involved the appointment of minor "judges" by an outgoing presidential administration to prevent their appointment by the new President, and that the Chief Justice had been politically aligned with the outgoing President, must have appeared to be less based on law than on raw power, particularly to a new President told that he had to accept the edict of a Chief Justice who sided with his political opponents.
Through its history, including the politically corrupt Bush v. Gore ruling so brutally dissected by Renata Adler, the Court's assertion of its nearly royal authority to tell the President what to do, or school districts what they must do, has often been invoked to resolve political disputes. It made George W. Bush president, but they also all but "removed" Richard Nixon from the presidency, as Congress kept avoiding its own responsibility to do so.
And yes, it was the former Governor of California, not previously considered a trailblazer who led the Court to desegregate the public schools, and so much more, to the point that he became the far right's "poster boy": the subject of Impeach Earl Warren signs all thorugh the country but especially in the state where he had been elected as its chief executive.
So what does this mean for the next appointment? Who should it be? What factors should the president take into consideration? Should it be someone who has run for office, such as Governor and then Chief Justice Warren, particularly since nobody who has run for office is currently on the Court and the retiring Justice is the only one who has even served in appointive political office?
I laugh even as I lament the idea that the former Dean of the Stanford Law School, Kathleen Sullivan, is considereda prime candidate for the Courtas a protege of Laurence Tribe, but Professor Tribe, probably one of the most brilliant legal thinkers in the country, is not. Dean Sullivan would obviously make a great Justice, but, of course, so would Professor Tribe.
As almost always, it seems, the answer may be found in the television progrm that kept us same during our years in the wilderness, "The West Wing". Here from the episode in the first season called "The Short List" are words written for the character "Sam Seaborn" either by the great Aaron Sorkin or the not so great Pat Cadell (you can tell who I think wrote them) about whether the Constitution recognizes a right to privacy as described in Roe v. Wade:
It’s not about abortion. It’s about the next 20 years. Twenties and thirties, it was the role of government. Fifties and sixties, it was civil rights. The next two decades, it’s gonna be privacy. I’m talking about the Internet. I’m talking about cellphones. I’m talking about health records, and who’s gay and who’s not. And moreover, in a country born on a will to be free, what could be more fundamental than this?
Another WW episode, Debra Cahn's "The Supremes" also has much that the current real White House should study. It is at least as relevant, if not way more so, than mindless babble about what "interest group" needs to "given" this "job."
The Supreme Court has a long way to go to recover from the Bush debacle it brought on. Neither Chief Justice Roberts, nor Justice Alito, both certainly qualified but selected by a ridiculous president chosen by a flawed process who employed equally bogus considerations in making his nomination, can help to restore it. This President, the best we have had in a many, many years, can and, I am certain, will, help it to take that first step with whoever he nominates who will be, I am sure, selected for all the right reasons.