Whom Should Obama Nominate?

George Will today notes, but takes no position, on the fact that the current Supreme Court has no members with experience of either the legislative or executive branches of government. He mentions some of the justices in the past who did possess such experience including John Marshall, William Howard Taft and Earl Warren. The last justice to have experience in another branch of government was Sandra Day O’Connor who served as a state legislator in Arizona before becoming a judge.

Will should not be so reticent. It is a good thing to have someone on the high court with such experience. Had there been someone who had actually run for office on the Court when it decided Citizens United, giving corporations virtually unlimited spending power in the electoral process, they might have seen that however pristine their reasoning, the result makes a hash of electoral fairness. He also makes a very salient point. In Brown v. Board of Education, Earl Warren not only used his political skills to engineer a unanimous decision, but the Court handed down a text that could be read by the common man, not just by jurists and lawyers. When the high court is called upon to render a verdict that impacts the lives of everyone, they should render a decision that is accessible to everyone.

Supreme Court nominations used to be ho-hum affairs, until the nomination of Robert Bork. While it is true that this was not liberalism’s finest hour and the debate sometimes descended into demagoguery, it is also true that Bork held views quite outside the mainstream of American politics, especially regarding race. Neither he nor Rehnquist thought much of the right to vote when they started their political careers standing outside polling stations intimidating minority voters. I would have voted against his nomination, but I do not believe that it was necessary to trash the man’s reputation. Now, in an attempt to avoid a similar fracas, presidents tend to appoint men and women with little or no paper trail. That precludes most politicians who have taken dozens or hundreds of votes on controversial matters.

In the next few years, many of the most important decisions will be in the area of business and labor relations. Just yesterday, in a conversation with a good friend, I was bemoaning the sad fact that no one, nor any institution, has replaced the vital role once played by Msgr. George Higgins as a point man for furthering relations between the union movement and the Church. As the families of the miners in West Virginia mourn their dead, the need for the Church to stand up for workers is as necessary today as ever. And, it would be easier to achieve if there was a strong voice for labor on the Court. In an ideal world, President Obama will nominate someone with a strong record of pro-labor positions and someone with experience in the real world of politics, not just in the Ivory Tower of academia and the appellate bench.

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