James MacGregor Burns has written a short and thoughtful sweep of the soiled history of the Supreme Court. The soiling began immediately with George Washington and the Founding Fathers. The three branches of the Federal government sort of looked like they were equal but were not. The tricky problem of how to “check and balance” the judiciary was basically left to be worked out later. Washington packed the court with Federalists because anyone not so identified was simply not his kind of man, and that set the pattern for all the succeeding presidents brilliant as well as average as well as incompetent. Washington made the court political.
Then along came Chief Justice John Marshall, Federalist to the hilt, appointed by John Adams who saw no good in any man unless the man fully agreed with Adams. Marshall knew the Constitution and he knew what he wanted. To put his wants and the Constitution in the same holding bag he declared in Marbury v. Madison that the Supreme Court had a power the Founding Fathers had not written down, the power of judicial review. He and his fellow political appointees on the Supreme Court had the final word on what laws were constitutional and just who had what powers to govern. It was a nice piece of work that solved a serious weakness in the Constitution, but it left in place the problem of what to do with political mediocrity sitting for life on the Supreme Court.
Burns shows in Packing The Court: The Rise Of Judicial Power And The Coming Crisis Of The Supreme Court that presidents pick judges little better than racetrack betters place bets. They rarely know the quality of the person but always know their political background. They rarely know mediocrity from excellence. They appoint life-holders who become reactionary and ossified as the country changes, leaving them out of touch with new needs and realities. Most appointments to the Supreme Court should never have been made.
In the final chapter, Burns writes, “Whether in the Gilded Age of the late nineteenth century or the Gilded Age at the turn of the twenty-first, the justices have most fiercely protected the rights and liberties of the minority of the powerful and the propertied. Americans cannot look to the judicial branch for leadership. They can not expect leadership from unelected and unaccountable politicians in robes.” Up to and including this point, Burns is correct, but he goes on to add the weakest pages of the book. His solution is not worth covering, but something does need to be done about our tolerance for slipshod Appellate and Supreme appointments. The big, transformational philanthropic foundations, the American Bar Association, and the media need to do a better job of explaining what is at stake, identifying excellence that goes beyond a successful legal and political career, and educating the public on who is being appointed and how the appointees are performing.
What do we know about potential Obama appointees? Of course the White House has a team vetting any number of people, but who is vetting for us, the mythic average citizen? We don’t need a constitutional amendment shuffling power around. We need public involvement in the vetting. Mediocrity and rigidity when exposed to light create a strong odor that is often intolerable even to Federally elected officials. Charles Marlin