Friday, July 08, 2005

Should Bush appoint a politician or a judge?

Recently Senators Reid, Spector, and Schumer have been suggesting that Bush look outside the judiciary for a Supreme Court nominee. This recalls Clinton's desire to appoint a "big-hearted" politician such as Babbit, Cuomo, or Mitchell to the Court. Clinton backed down because of the likely opposition such politicians would have faced compared to judges like Ginsburg or Breyer. The reason, though, that he initially wanted such nominees was that he believed they would be more likely to implement "big-hearted" policies (i.e. act as super-legislators rather than judges). I suspect that is one reason these Senators want Bush to look outside the judiciary for nominees. Politicians are more likely to enact their favored policies from the bench.

The other obvious reason is that they are Senators and like the idea of once again making the Senate a major souce of Supreme Court nominees. I think this reason is somewhat misguided. A major reason Presidents liked to appoint Senators to the Court, as well as the cabinet, was Senatorial courtesy. Nominees that would otherwise be considered unacceptable would be confirmed. FDR's appointment of Hugo Black is an example. FDR did not believe he could get through as liberal a nominee as Black (today Black would be labeled a right-wing extremist) without the benefit of Senatorial courtesy. The Democrats in the Senate, however, do not seem inclined to allow all Senators through, even the most qualified such as Cornyn. Presidents therefore have a reduced desire to appoint from the Senate.

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