George Will

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.

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 transferring 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?


George Will

George F. Will is a 1976 Pulitzer Prize winner whose columns are syndicated in more than 400 magazines and newspapers worldwide.
 
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