Below is my column in the Hill newspaper on why the most creative and productive individuals are often disfavored in our modern confirmation system. With the announcement of the new nominee this evening by President Donald Trump, we will have the state of a counterintuitive process that favors those who are the least forthcoming or open about their views.
Here is the column:
In his influential book, “Why Big Fierce Animals Are Rare,” ecologist Paul Colinvaux explained that big animals are top predators but require more food and energy to survive. Smaller animals require less of both, and present less of a target to predators, and therefore tend to survive.
The same is true for Supreme Court nominees. Most are not especially remarkable in their prior rulings or writings. They are selected largely for their ease of confirmation and other political criteria. Big fierce minds take too much time and energy to confirm, so White House teams look for jurists who ideally have never had an interesting thought or written an interesting thing in their increasingly short careers.
The last nominee was a remarkable departure from this judicial ecology rule. As I testified at his confirmation hearing, Neil Gorsuch was an intellect of the first order with a long list of insightful and provocative writings as both a judge and an author. He also was guaranteed a seat when the Republicans got rid of the filibuster rule for nominees. Yet, even without the filibuster rule, there remains a pronounced bias against those big fierce minds that can both inspire and incense observers.
The history of Supreme Court nominations is largely one of planned mediocrity. The influential legal minds of a generation often are avoided for more furtive minds. Take Richard Posner, who may be the single most influential legal mind of this generation. Before his appointment to the U.S. Court of Appeals for the Seventh Circuit, Posner already was a legend. The former University of Chicago law professor, considered by many to be the father of the law and economics movement, has written roughly 40 books that brilliantly explored a dozen areas of law. No justice on the Supreme Court has had even remotely the impact of Posner, yet he was repeatedly bypassed as a Supreme Court nominee.
The reason is that Posner often pushed discussions into uncomfortable places or analogies. He famously wrote about how there already exists a type of market where birth mothers are paid for having babies while private adoptions often charge for their more selective records. Posner suggested that society could drop the pretense and allow for an actual market. He was not advocating the selling of babies but offering an economic analysis of how the current system allows for monetary transfers incident to adoption. He explored whether money could go directly to women to have a baby rather than an abortion. It was meant to be provocative and it was. He was swiftly dubbed in a Washington Post article as “the judge who would sell homeless babies.”
Likewise, Robert Bork was a big fierce mind who actually secured a nomination in 1982. Bork had provocative views on the Constitution. Despite my disagreement with some of those theories, he had a coherent and consistent philosophy. He was a great believer in judicial restraint and originalism. Unlike many nominees who hide their views, Bork testified at length on his interpretive views, which were far more nuanced than critics suggested. He made a big target, and Sen. Ted Kennedy (D-Mass.) gave a devastating speech about “Robert Bork’s America” as a virtual hellscape of segregation, back-alley abortions and “writers and artists censored at the whim of the government.” Ultimately, the seat on the bench went to the thoroughly uncontroversial Anthony Kennedy.
Liberals have their own history of avoiding leading intellectuals for those with the smallest possible intellectual footprints. Sonia Sotomayor was not viewed as a leading judicial figure on the courts despite many years as an appellate judge. Yet, she was selected by President Obama over jurists, like Guido Calabresi on the same circuit, who were widely viewed as renowned legal minds. Like Posner, Calabresi is one of the towering legal figures of our generation and helped to reshape fundamental areas of law as a Yale law professor and, later, as a Second Circuit judge.
The short list this week does not contain any big fierce minds in the class of Posner or Calabresi. Nevertheless, President Trump showed refreshing interest in an intellectual leader in Gorsuch. The next nomination could determine if the intellectual contributions of Gorsuch were intentional or incidental factors in his selection. There is a difference between fierce ideology and fierce intellect. Many on the list of 25 judges stand out for commitment to conservative values but are not particularly distinguished in contributions to legal thought. Most fall closer to the mold of Samuel Alito and Clarence Thomas, as opposed to Antonin Scalia and Gorsuch.
Confirmations tend to reward young lawyers who avoid controversies to advancement on the Supreme Court. That means remaining silent on most of the defining issues of our time, from abortion to gay rights to free speech. Remarkably, that stance is not viewed as a negative. We prefer those who remain mute for decades as others engage the issues tearing at our social and political fabric. But there are certainly exceptions.
One judge on the short list who has garnered attention is Amy Coney Barrett of the U.S. Court of Appeals for the Seventh Circuit. One can certainly disagree with her opinions, but at least she had opinions and voiced them. At George Washington University and Notre Dame law schools, she was bold and unabashed. That already is proving to be a liability in favor of other potential nominees who kept their thoughts to themselves and left to others the debate over society’s core values.
We should be skeptical, not supportive, of nominees who remain a “blank slate” after years of practice. Such calculated passivity speaks not only to a lack of intellectual curiosity but a certain lack of connection to the law. We should stop penalizing those who choose to participate in our debates by putting themselves and their views out there for public discourse. Until then, our chances of selecting another big fierce mind like Louis Brandeis, William Brennan or Antonin Scalia will be purely accidental. It is not that they are hard to find. They are just too easy to spot.