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1702692711 The modern Court has also notably lacked diversity of professional background. Following Sandra Day O’Connor’s retirement in 2006 and her replacement by Alito, all the members of the Court, for the first time in the country’s history, had been federal appeals court judges immediately before their appointments. Elena Kagan’s nomination in 2010 broke that mold. Solicitor general of the United States and before that, dean of Harvard Law School, she was the first Supreme Court nominee in thirty-nine years (since the 1971 nominations of William H. Rehnquist and Lewis F. Powell Jr.) never to have been a judge.

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1702692713 Few would have predicted such resumé-narrowing back in earlier days, when justices were drawn from the top ranks of the executive and legislative branches. Members of the Warren Court (1953–69), for example, included three former United States senators (Hugo L. Black, Harold H. Burton, and Sherman Minton, only one of whom, Minton, had prior judicial service). Two others had been attorney general of the United States (Robert H. Jackson and Tom C. Clark, neither of whom had been judges). Others had held elective office at the local, state, or federal level. Chief Justice Earl Warren himself had served three terms as governor of California and had run for vice president on the national Republican ticket in 1948. He had never been a judge.

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1702692715 The change in the biography deemed appropriate for members of the Supreme Court is due in significant measure to the politics of the modern nomination and confirmation process. More than in the past, that process has become an occasion for a national debate about the role of the Court and the constitutional values that justices should be expected to uphold. Of course there has always been political conflict surrounding Supreme Court nominations, as presidents since George Washington have learned and as Franklin D. Roosevelt’s effort to tame a recalcitrant Supreme Court exemplifies. But recent decades of divided government, increasing partisanship in Congress, the Court’s high visibility in debates over divisive social issues plus its own close ideological balance have combined to raise the stakes for any nomination. Add the ability of partisans to conduct saturation-level media campaigns and it is easy to understand that a president faced with filling a Supreme Court vacancy wants no surprises, either in the confirmation process or during the nominee’s subsequent service on the Court. The most readily available insurance policy against the unknown, although obviously far from perfect, is a judicial record that indicates how a potential nominee approaches the craft of judging as well as specific legal issues. In fact, appointing a sitting judge can serve a dual purpose for the president by providing a recognized credential the president can point to in order to buffer any implication that the selection was driven by ideology.

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1702692717 Nonetheless, a president who seeks to use a Supreme Court appointment to advance an agenda that Congress has not embraced, especially when the balance on the Court is perceived to be at stake, is most likely to meet resistance no matter how impressive the credentials of the nominee. The battle over President Ronald Reagan’s nomination of Judge Robert H. Bork in 1987 is often depicted as the event that created the modern“confirmation mess.” Although perhaps different only in degree rather than in kind, the Bork battle was a politically galvanizing event that played out in a bright media spotlight and left a legacy of bitterness that shaped the handling of subsequent nominations.

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1702692719 The Bork nomination had every ingredient of a recipe for political conflagration. The Reagan administration, having lost the Senate to the Democrats the previous November, was in a weakened political position, vexed by the Iran-Contra foreign policy scandal. Judge Bork, a longtime law professor whom the administration had placed on a federal appeals court to ready him for a Supreme Court nomination, was an outspoken conservative with a long list of publications arguing against the tenets of modern constitutional law. Lewis Powell, the moderate conservative Bork was named to replace, was the “swing” justice of his day, holding the balance of power on a closely divided Court, so that a potential Justice Bork was seen as an agent of change on such issues as abortion and affirmative action, both of which Powell had supported to at least some degree.

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1702692721 A coalition of liberal groups and leading Democratic senators organized to defeat the nomination by depicting Bork as “out of the mainstream.” The nominee played into his opponents’ hands during a week of televised testimony before the Senate Judiciary Committee, during which he defended his “originalist” judicial philosophy and offered gruff criticism of the Court’s reliance on a right to privacy, not found in the Constitution’s text, to protect a couple’s right to use contraception and a woman’s right to abortion. There is little doubt that the defeat of Robert Bork’s nomination, by a vote of 58 against to 42 in favor, staved off a sharply conservative turn on the Court. A centrist conservative, Anthony M. Kennedy, a judge on the federal appeals court in California, was ultimately confirmed to the seat. He supported the right to abortion and, in equally sharp contrast with Bork, embraced a robust view of the First Amendment right to free speech. During the years following the terrorist attacks of September 11, 2001, Kennedy voted repeatedly with the Court’s majority to reject President Bush’s claim of unilateral authority over detention policies for enemy fighters. Robert Bork, from the sidelines, denounced those decisions.

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1702692723 There has been an intermittent debate over the years over whether the Senate should defer to the President’s Supreme Court choices if the nominees’ professional qualifications were satisfactory, without regard to senators’ own ideological preferences. As a theoretical matter, that debate is still ongoing. As a practical matter, the Bork battle resolved it. The Senate asserted the right to evaluate qualifications, which Judge Bork certainly possessed, through the lens of ideology, which in his case alarmed a majority of the senators. “Judge Bork’s confined vision of the Constitution and of the task of judging itself carries too great a risk of disservice to future national needs and distortion of age-old constitutional commitments to permit his confirmation,” the Judiciary Committee’s report on the nomination concluded after reviewing Bork’s testimony for nearly one hundred pages.

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1702692725 After Bork’s defeat, his supporters warned that presidents would never again be able put forward a nominee who had accumulated a “paper trail” of engagement with the great issues of the day. That prediction did not prove precisely accurate. Before becoming a federal appeals court judge, Ruth Bader Ginsburg had been a leading civil rights lawyer who, in a half dozen Supreme Court arguments during the 1970s, played a major role in persuading the justices to regard sex discrimination as a matter of constitutional concern. Her record of advocacy, her paper trail, was long. Yet she was quickly and easily confirmed, by a vote of 96 to 3. One difference was that both the White House and the Senate were in Democratic hands. Another was that in twelve years on the appeals court (overlapping with Robert Bork’s brief service on the same court), she had shown herself to be a cautious, centrist-minded judge. Further, the positions for which she had advocated had for the most part been adopted by the Supreme Court and could not plausibly be described as “out of the mainstream.”

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1702692727 Yet despite coming before the Judiciary Committee in a position of strength in 1993, Ginsburg set a precedent that shaped subsequent confirmation hearings: she declined to engage the senators in more than minimal conversation about her views. Without disavowing any of her public positions, she refused to answer abstract questions and deflected more specific questions by saying that she should not take a position on an issue that might well come before the Court. Later nominees also took refuge in this strategy, with the result that the modern confirmation hearing has become a largely unrevealing ritual. (Ginsburg’s appeals court colleague, Antonin Scalia, had in fact employed an extreme version of the say-nothing strategy at his Supreme Court confirmation hearing in 1986, telling the senators that “I do not think I should answer any questions regarding any specific Supreme Court opinion, even one as fundamental as Marbury v. Madison.”Following the Bork hearing, nominees were expected at least to pay their respects to major landmark precedents.)

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1702692729 John Roberts, nominated to be chief justice in 2005, also had a paper trail, one of memos and analyses he had written as a young lawyer in the Justice Department and White House during the Reagan administration. Some were dismissive of civil rights claims and many were unmistakably conservative in tone. But Roberts—also a judge on the same appeals court where Bork and Ginsburg had served—came to his confirmation hearing prepared to deflect questions about his views. Unlike policymakers, Roberts said in his opening statement, judges are bound by precedent and should approach their role with “a certain humility.” He told the senators:“Judges are like umpires. Umpires don’t make the rules; they apply them.” Not all senators were reassured, but enough were. The senate confirmed the seventeenth chief justice by a vote of 78 to 22, with the “no” votes coming from half the chamber’s forty-four Democrats.

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1702692731 Despite the attention that presidents and senators pay to Supreme Court nominations, nominees do not always turn out as forecast. Political scientists have charted the phenomenon of “ideological drift” and have concluded that it is common—even, perhaps, the rule rather than the exception, with some justices shifting ideological direction more than once. The leading example in recent decades is that of Harry A. Blackmun, appointed in 1970 by President Richard Nixon as a reliable conservative who gave every sign of being an ideological soul mate of his boyhood friend, the recently appointed chief justice Warren E. Burger. Yet by the time Blackmun retired twenty-four years later, he was the most liberal member of the Court—to be sure, a more conservative Court than the one he had joined, but his leftward migration on nearly all important issues was striking. John Paul Stevens, another Republican appointee, became more liberal during his tenure of more than thirty-four years. To a lesser degree, so did Sandra Day O’Connor and David H. Souter, likewise Republican appointees. The category of justices who became more conservative while on the Court appears much smaller. That is perhaps because no Democratic president made a Supreme Court nomination from 1967 until 1993, leaving a very small recent pool of justices who might be in a position to drift to the right. Arguably the most recent to have done so was Byron R. White, appointed in 1962 by President John F. Kennedy.

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1702692733 How can substantial changes in outlook be explained among a group of mature, professionally experienced individuals?(Blackmun was sixty-one when he was named to the Court, and had been a federal appeals court judge for eleven years.) Robert Jackson, observing the Court as FDR’s attorney general, posed a version of that question in a book he published shortly before his own appointment as a justice in 1941.“Why is it,” he asked in The Struggle for Judicial Supremacy, “that the Court influences appointees more consistently than appointees influence the Court?” Indeed, Jackson himself changed while on the Court: initially a strong supporter of presidential power, he grew skeptical of its exercise, and in 1952 wrote an opinion, still widely cited today, setting out a framework for confining a president’s assertion of authority (Youngstown Sheet & Tube Co. v. Sawyer).

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1702692735 As Jackson’s question suggests, the experience of serving on the Court is a unique and powerful one, providing new perspectives that can dislodge preconceived notions—for some, but obviously not for all. The author of a study of the twelve Republicanappointed justices between 1969 and 2006 found a strong correlation between prior service in the federal executive branch and ideological stability as a Supreme Court justice. Half of the group had held substantial executive branch positions before joining the Court while half had not. Only those without such experience drifted leftward. Another scholar, going back to Earl Warren’s appointment in 1953, pointed to residency at the time of appointment as the distinguishing feature between those who exhibited “voting change” on civil liberties issues and those who did not. Those who were living in Washington, DC, at the time of their nomination tended not to change, while those who came to the Court from outside the Beltway became more liberal. Of course, there is substantial, although not complete, overlap between those with executive branch experience and those living in Washington. Perhaps the challenging experience of a midlife move to a new city makes a new justice even more open to new perceptions.

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1702692737 The Constitution makes federal judges, along with the president, vice president, and “all civil officers of the United States”subject to impeachment for “high crimes and misdemeanors.”Although a dozen judges of the lower federal courts have been impeached by the House of Representatives, convicted by the Senate, and removed from office following criminal convictions, Congress has never removed a Supreme Court justice. The House voted in 1804 to impeach Justice Samuel Chase on charges of sedition. Chase was a fervent partisan of the former president, John Adams. He had angered the newly empowered Jeffersonian Republicans by his speeches and particularly by a grand jury charge he delivered as a circuit judge that criticized President Jefferson. Chase had, however, committed no crime, and the Senate acquitted him. He remained on the Court for another seven years. The episode established the principle that disagreement with a judge’s judicial acts is not a valid reason for impeachment.

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1702692739 Nonetheless, there were calls during the 1960s for the impeachment of Chief Justice Earl Warren, and in 1970 the Republican leader of the House of Representatives, Gerald R. Ford, led an effort to impeach Justice William O. Douglas, an outspoken liberal. Ford’s campaign against Douglas, backed by the Nixon administration, centered on the justice’s activities off the bench, including his multiple marriages, publication of a book and magazine articles, and service on the board of a private foundation. When asked to explain how these activities amounted to impeachable offenses, Ford replied that “an impeachable offense is whatever a majority of the House of Representatives considers it to be in a given moment of history.” The House Judiciary Committee investigated the complaint against Douglas at length but declined to recommend impeachment, and the effort died. Douglas retired in 1975 after a tenure of thirty-six years, the longest in the Court’s history. Through an odd twist of fate, Gerald Ford had become president a year earlier when Richard Nixon resigned in the face of impeachment.

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1702692744 4. William O. Douglas, photographed on March 20, 1939, the day of his nomination to the Supreme Court by President Franklin D. Roosevelt. At the age of forty, Douglas was the youngest man ever named to the Court, and he served the longest, retiring in 1975 after thirty-six years.

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1702692746 Finally, another word about the incipient debate over the merits of life tenure for Supreme Court justices. The debate is largely confined to the legal academy and may well never go farther, but it is illuminating of demographic trends and perceptions. When the Constitution was being debated, life tenure for judges was not a given. Thomas Jefferson opposed it, arguing for renewable terms of four to six years. But the Framers chose to protect judicial independence by a guarantee of tenure “during good Behavior” as well as by providing that a judge’s salary could not be reduced.

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1702692748 Today, however, criticism comes from both the Right and the Left, from scholars who argue that when justices linger well into advanced old age in order to time their retirements according to political loyalty, and when presidents try to project their legacies far into the future by seeking ever younger nominees, life tenure exerts a distorting effect on both the institutional life of the Supreme Court and the political life of the country. Certainly justices are living longer and staying longer. Between 1789 and 1970, justices served an average of fifteen years. Between 1970 and 2005, the average jumped to more than twenty-six years. The Court went without a vacancy for eleven years between 1994 and 2005, the longest period without turnover since the 1820s.

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1702692750 Removing life tenure directly would require a constitutional amendment, an arduous if not impossible task. So some advocates of change have proposed a statutory work-around that would achieve much the same result: continuing to appoint justices for life, but establishing that the term of active service would be eighteen years. A justice would then move into the semi-retired ranks, similar to the system in place for the lower federal courts, available to be called upon to break a tie when only eight justices would otherwise be available to sit, or for other judicial duties. The opening for a position as one of the nine active justices would then be taken by a new appointee. Under this system, a new justice would be appointed every two years. In other words, every president would get two appointments, thus regularizing the current randomness with which vacancies now occur. No president would have to suffer the drought that Jimmy Carter faced, without a single Supreme Court vacancy to fill during his presidency.

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1702692752 The critics of life tenure note that all other constitutional democracies, while borrowing much from the American example, including the norm of judicial independence, have rejected life tenure for their high court judges. Canada, Australia, Israel, and India, for example, impose fixed age limits, while the constitutional courts of Germany, France, and South Africa have fixed terms. Among the fifty states, only Rhode Island has placed no limits on the tenure of the judges on its state supreme court.

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1702692754 The critique of life tenure may never gain public traction in the United States. But it poses the provocative question of where protection for judicial independence most reliably lies: on paper alone, or in a country’s culture of learned expectations from courts that in turn preserve public trust with reasoned judgment.

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1702692759 美国最高法院通识读本 [:1702690385]

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