First a word about Jack Kemp. I met Jack when he came to the House and developed an instant affection for him. It was impossible not to like him--he was open, honest, enthusiastic, passionate. There was simply nothing phony about Kemp and so much to admire. Jack loved his country and loved its people and wanted nothing more than to have everyone, regardless of race, creed or status, succeed.
He was brimming with ideas, and eager to talk about them--he loved to argue about policy and philosophy. In all those features, and in his sometimes maddening verbosity, Kemp reminded me most of Hubert Humphrey--he was a Happy Warrior of the right, and the real originator of modern compassionate conservatism.
Through his passion and the sheer force of his personality, Kemp drove the idea of tax cuts as a prime focus of economic policy more than anyone. When Ronald Reagan became president, Kemp had laid the groundwork for the sweeping tax cuts that became known as Kemp-Roth. He was a pioneer in urban policy and housing as well. Jack wanted every American to have opportunity, but that was not simply an empty phrase to him or a term to justify a sink-or-swim philosophy.
I am distraught at his premature passing. What a great guy, and what a great public servant.
On to the Supreme Court vacancy. Count me among the most ardent supporters of filling the Souter slot with someone with elective experience, preferably (but not necessarily) from Congress. The departure of Sandra Day O’Connor meant not only the loss of the second woman on the court, but the loss of the only politician. In both ways, the court was much the worse for it.
Chief Justice John Roberts saw the loss of someone with a political background as a good thing; in February, he rejoiced in the notion that the court finally was rid of any members who moved constitutional law too much into the realm of political science and away from pure jurisprudence.
Roberts views the current court as very diverse--because some justices have taught in law schools, others have worked in the Justice Department, and many have worked in private practice. I believe that definition of diversity is a stretch.
Having a bunch of lawyers who know and have sympathy for the executive branch but have no inside understanding of how legislatures work is hardly an ideal situation. Having justices with no sense of the real world of campaigns and politics, whose world view is shaped otherwise by experience in big law firms or from the ivory tower of law schools, is no way to fill a court that has to interpret legislative intent and respect the lawmaking process including the give-and-take necessary to pass legislation, much less a court that has to make decisions about campaign finance, redistricting and other critical areas shaping the political process.
Neither does it sensitize justices to the real-world consequences of their actions. Like it or not, the federal appeals courts and the Supreme Court make policy, across the widest range of areas. The court has to consider the impact of its decisions on citizens and on the country.
The notion of a court completely dominated by people whose main claim to fame is prior judicial experience is a relatively new phenomenon, which has evolved as our political process has become more partisan, polarized and competitive, and as the courts have grown more powerful as policy engines. That makes each lifetime judicial appointment more significant--and makes presidents more likely to pick people with lengthy track records to avoid unpleasant surprises and to satisfy their bases.
In the 1950s, the Warren Court had only one justice who had served on a federal court of appeals, Sherman Minton--and he had also been a U.S. Senator. Five of the nine had been politicians--three Senators (one of whom had previously been mayor of Cleveland), one state legislator and one governor, the chief justice.
When we look carefully at the history of its most significant decision, Brown v. Board of Education, arguably the most significant decision in our lifetimes, it is remarkable to see how the justices worked over two full terms to make it unanimous, despite the wide range of views on the court. Warren and his colleagues understood the gravity of that decision for the social fabric of the country--and knew that if the decision were 5-4 or 6-3, it would exacerbate divisions in the country for decades to come.
What Roberts views as a plus, I view as a minus. Chances are a Brown-type case brought up in a Roberts Court would be 5-4, as so many of the tough and controversial decisions of the past 10 years have been. A court consisting only of longtime judges looks at decisions with tunnel vision, not only about the larger consequences for the society, but with a focus more on their own philosophies or ideologies.
There is no evidence from the experience of a court dominated by judges that it is less activist or more careful; exhibit A is Bush v. Gore, the limiting case of a Supreme Court ignoring established rules and provisions in the Constitution and law for weighing disputes about electors to intervene prematurely for political purposes.
There are some great lawyers, professors and judges out there who would make outstanding justices. I am partial to Cass Sunstein, José Cabranes, Pam Karlan, Seth Waxman and Harold Koh. But the country would be well-served to have at least one member who has served in a legislature, or had to deal with a legislature as governor, or at least had to face voters and practice politics. There are plenty of smart and qualified options here, from Jennifer Granholm to Janet Napolitano to Bobby Scott to Zoe Lofgren to Amy Klobuchar to Sheldon Whitehouse, and many more. I hope the president, who knows constitutional law, the role of the court, and the role of Congress and politics as well as any president in history, takes the argument seriously.
Norman J. Ornstein is a resident scholar at AEI.