POLITICS JULY 17, 2009
-
Read Later
READ LATERAvailable only to subscribers. SUBSCRIBE TODAY
-
Listen
ARTICLE AUDIO
- Font Size
Attention was understandably focused on Sonia Sotomayor this week, as her confirmation hearings unfolded. But what about Obama's other judicial nominees? The president has so far nominated five judges to federal circuit courts. On average, these nominees are 55 years old, more than a decade older than Sotomayor was when she was nominated to the Second Circuit. (She was 43.) For years, Republicans have been nominating sharp young conservatives to the lower federal courts. Now, rather than looking for young legal talent of its own, a Democratic administration seems to be favoring older nominees. In our view, this is a major mistake.
The obvious reason is that federal judges, like Supreme Court justices, have life tenure--which means that younger judges serve longer on the bench and, all else being equal, have more influence over the law. (And the influence of circuit-court judges is considerable: Although the Supreme Court may be the last word on major constitutional issues, the lower courts matter just as much, if not more, in the administration of the law. This past year, the Supreme Court decided 83 cases, while the federal circuit courts disposed of 61,104.)
But the age of federal judges matters for another reason as well. Past administrations have placed their brightest young legal minds on the lower courts to give them judicial experience, making them stronger candidates for higher judicial office. These days, it has become a prerequisite for Supreme Court justices to have served on a circuit court. And if circuit nominees are not relatively young, then they will be too old for elevation to the high court by the time they have the necessary experience. The makeup of the Roberts Court illustrates this point: All nine justices served as circuit judges, and their average age when successfully nominated to the circuit courts was 44--eleven years younger than the average age of Obama's nominees. The youngest, Anthony Kennedy, was nominated at 38. The oldest, John Paul Stevens and David Souter, were nominated at only 50.
And so Obama's first five circuit-court nominations raise serious concerns. Their average age of 55 (they are 51, 52, 54, 58, and 60) is considerably higher than the average age of nominees under recent past presidents. According to regional circuit-court data compiled from the Federal Judicial Center, Reagan's nominees were, on average, 50 years old; George H.W. Bush's averaged 49; and George W. Bush's averaged 50. Even Clinton's nominees were under 52 on average.
Moreover, roughly a quarter of the circuit-court nominees put forward by the past three Republican presidents--and 15 percent of those chosen by Clinton--were below the age of 45. Reagan nominated some of the brightest young legal minds in the country, including Alex Kozinski (then 34), Frank Easterbrook (36), Kenneth Starr (37), J. Harvie Wilkinson (39), Doug Ginsburg (40), and Richard Posner (42). The first President Bush nominated Michael Luttig (36), Samuel Alito (39), and Clarence Thomas (41). And George W. Bush continued this practice, nominating Neil Gorsuch (38), Brett Kavanaugh (41), Raymond Kethledge (41), Jeffrey Sutton (42), and William Pryor (42), among others. Although we realize Obama is early in his presidency, so far none of his circuit court nominees are in their 40s, let alone their 30s.
Because Republicans have done a better job than Democrats of nominating young judges, the lower federal courts have had a sustained and substantial conservative presence well beyond the tenure of Republican presidents. Decades after their nominations, judges like Posner, Wilkinson, and Kozinski are major figures in the legal world. The credibility and exposure that come from many years on the federal bench have allowed these judges to exercise enormous intellectual influence.
The Republican practice of appointing younger circuit-court judges has also proved crucial for recent Supreme Court nominations. When Bush searched for nominees to replace William Rehnquist and Sandra Day O'Connor, he benefited from a deep bench of experienced and qualified conservative federal judges. Bush settled on John Roberts (initially nominated at 36, though never confirmed; then re-nominated and confirmed to the D.C. Circuit at 47; and barely 50 when elevated to the Supreme Court) and Samuel Alito (39 when nominated to the Third Circuit; 55 when nominated to the Supreme Court). Among Bush's other contenders, Fourth Circuit Judge Michael Luttig was 36 when nominated to the bench and 51 when interviewed for the Supreme Court; Fifth Circuit Judge Edith Jones was nominated at 35 and up for the Supreme Court at 56.
By contrast, when Obama searched for Souter's replacement, he did not have a very large pool of experienced and younger judges from which to choose. Sotomayor was one of Clinton's youngest nominees, only 43 when selected for the Second Circuit and only 54 when nominated to the Supreme Court (she is now 55). There were other, younger stars of the legal left attracting attention from some commentators (Pamela Karlan at Stanford Law School, for instance) but none had the judicial experience that seems politically necessary for a Supreme Court appointment.
If the early trend in this administration's circuit-court nominations continues, the danger to its judicial legacy should be obvious. Obama brought generational change to the White House. He is just 47. He was only 43 when he arrived on Capitol Hill. With 60 Democratic votes in the Senate, and a new political reality in Washington, the president should make it a priority to nominate federal judges who are his age, or younger.
David Fontana is associate professor of law at George Washington University. Micah Schwartzman is associate professor of law at the University of Virginia.
9 comments
This piece is descriptively accurate, and worth thinking about. But it is awfully early in the Obama Administration to be drawing deep conclusions from his first five (!) nominees to the circuit bench. (And one should recognize that several of these early appointees had individual stories relevant to their early nominations.) One might also consider whether individuals in their thirties, no matter how bright, are likely to have the life experience and wisdom to make good judges at that stage of their lives. Many of the Reagan choices were talented young ideologues, and their appointments reflected a profound ideological agenda (cf. comments by Republican Senators in the recent confirmation hearings, for just a touch of hypocrisy on this matter, among others). Some of us (perhaps a bit old school?) might prefer folks more ready to be excellent judges from the outset of their service. Of course, the notion that Supreme Court nominees should/must come from prior judicial (particularly federal Curcuit Court) positions should be re-examined. On this, as on several other matters, candidate Obama talked a better game than President Obama has --at least thus far--performed. I do hope that President Obama's future judicial nominations will be more attentive to potential progressive intellectual leadership on the courts (at all levels, and at whatever age on nomination) than were most of President Clinton's. There are certainly a number of outstanding potential judicial candidates now working as political appointees in Obama's Administration, and I think this experience will serve them well on the bench in the future.
- The Wise Bard (Madison, WI)
July 17, 2009 at 10:22am
All germane and well to-the-point. But the more important question implicitly raised but not addressed is this: why must Supreme Court justices have been judges prior to nomination as a Supreme? Indeed, any number of our most prominent Supreme Court jurists had never been judges prior to their elevation. Random bipartisan examples include Charles Evans Hughes had never been a judge prior to his 1910 appointment to the Supreme Court. Ditto Harlan Fiske Stone, Felix Frankfurter, William Douglas, Robert H. Jackson, Louis D. Brandeis, Hugo Black and Arthur Goldberg--just to name a few. Dwight Eisenhower nominated Earl Warren to become Chief Justice from California's governorship as a patronage payback for Warren's support at the 1952 Republican National Convention. The notion of the necessity to have been a judge before becoming a Supreme is a rather more recent legacy of Richard Nixon.
- Elihu Davison
July 17, 2009 at 11:23am
Maybe he is nominating people who he knows will decide cases the way he wants. The best way to do that is to nominate people who are older and more settled in their views.
- JohnB
July 17, 2009 at 2:12pm
I could not agree more. I have been pretty disappointed with Obama's picks across the board so far -- including Judge Sotomayor. Early in the primaries, the fact that Obama was a con law prof was one of his most attractive traits. The sustained assault on the federal judiciary and "liberal" legal ideals is seriously damaging to the higher ideal of justice in this country. The "right" judges are SO much further out of the mainstream than the "left" judges in the federal judiciary it's not even funny. Amongst legal conservatives, the idea that the Bill of Rights wasn't incorporated through the 14th Amendment isn't even that controversial -- which is patently ridiculous. This is chess, not checkers, and I have been surprised by his politically expedient picks. The real chess move here would be to start nominating politicians to circuit court positions. That would both increase the sorely needed professional diversity on the Court and would provide political cover for nominating someone who's not such an "umpire" (which is a joke for someone sitting on the Supreme Court. There are few "balls and strikes" when it comes to undecided questions of law, particularly those based on "reasonableness" or "due process."). Nominate someone like Granholm (or even Napolitano) to a circuit court seat.
- Brook
July 17, 2009 at 6:44pm
I find the comments more useful than the article. The main reason prior judicial experience, indeed circuit court experience, has seemingly become a requisite for Supreme Court nomination has less to do with the qualities of the candidates and more to do with the qualities of the "advisors" and "consenters". The Senate has become a body of pygmies and ideologues, left and right, who are looking for sure things. A judicial record is the best available guide to a sure thing. Except, it don't work. Souter is only the most recent example (longer state court experience than federal court experience). Oddly enough, the Republicans are more often disappointed than the Democrats. Did Ike expect what he got from Brennan (with prior state supreme court experience)? Did Nixon expect what he got from Blackmun (with short term judicial experience)? Did Ford expect what he got from Stevens (same story)? LBJ and Reagan, two consummate politicians, got what they wanted. Point two: The law, by its nature, tends to be a conservative profession. It may be inherently easier to find young conservatives who are confirmable, than young liberals who are confirmable. I am reminded of the quote carved in stone above the entrance of Penn Law School: The known certainty of the law is the safety of all. The "establishment" may change, but it is always wary of flamethrowers. Note, in this regard, that the Senate is increasingly populated by people who have lots of personal money and property to protect. Third, suppose you nominate a circuit court judge at the age of 55; do you suppose he or she will not serve 15 years to qualify for full pay on senior status, health permitting? What about the young turk who leaves early for private practice because he can't pay three Yale tuitions on judicial pay? This retired lawyer would like to see people who have distinguished themselves in elective office; e.g., Abner Mikva; or in private practice; e.g., Lewis Powell; get appointed to senior positions in the judiciary. Also, how about appointing sound state court trial judges to the federal judiciary, and then moving the best of them up to the circuit level? Enough with the academics and intellectuals!
- lsernoff
July 17, 2009 at 7:11pm
There is a young rising star in the 9th Circuit Court of Illinois. A young, very educated Judge who will surpass most if not all the judges in Illinois in his jurisprudence. He is the Hon. Jorge L. Ortiz. President Obama should take a hard look at him.
- IzzyO
July 18, 2009 at 5:01pm
I agree with those who say that SCT justices ought not to be drawn exclusively from the ranks of U.S. Circuit Judges. Apart from everything the previous commenters have said, it occurs to me that those who are, or have been justices on a state supreme court might have more relevant experience than would a federal intermediate appellate court judge. Souter's an interesting example. He'd been on the NH Supreme Court for a while; he was on the federal First Circuit only a few months before being nominated to the SCT. One could certainly say that his NH experience gave him a perspective that none of the other current justices has.
- Bone Crusher
July 22, 2009 at 10:42am
Why & how have we concluded SCOTUS membership is limited to sitting federal judges? Isn't that a striking departure from our historical norm?
- oddjob
July 22, 2009 at 1:33pm
It takes two law professors to write an article about the age of judges? This reads like a sophomore's poli sci piece.
- Sven
July 22, 2009 at 1:35pm