Appoint A 21st Century Earl Warren

Today, the New York Times reported that Chief Justice John Roberts recently stated, in a speech, that every member of the Supreme Court was a former United States Appellate Court Judge and that was a good development. Roberts surmised that judges are more likely to put aside their policy concerns and focus on the law. The fact that the Chief Justice could make such a statement makes you wonder how he became the Chief Justice in the first place. Does it have anything to do with the fact that George Bush appointed him?

Obviously, Roberts has squared away Bush v. Gore, a ruling that any respected legal scholar, of any ideology, has concluded came down to a 5-4 political vote. Roberts has overlooked that his fellow Justices, Scalia and Thomas, set aside decades of conservative ideology, which their whole careers where based on. Scalia and Thomas held the view that the Federal Courts have no right to intervene into pure state issues, yet they suddenly found an equal protection claim in Florida voting precincts, and overruled the Florida Supreme Court which halted vote counting and gave Bush the Presidency. Scalia’s response "Get over it."

As the Times pointed out, even former Chief Justice Rehnquist wrote that a Supreme Court, made up of all judges, was not good for the country. A University of Pennsylvania Law Review study found that there is no supporting data that former judges are more likely to put aside their policy preferences when ruling on a case.

Part of the problem in Washington is that it is run by technocrats who have lived very insular lives. They all went to a few elite institutions. They have, for the most part, worked in Washington (government) or New York (business) – usually moving between both - for most of their careers. This trend cuts across political party and ideology.

Frank Rich, in The New York Times, pointed this out in a recent column,on Barack Obama Team Of Rivals. Rich wrote how LBJ came to, then Speaker Sam Rayburn, bragging on the intellect and talent of JFK’s new cabinet and Rayburn responded "I wish one of them had run for Sheriff." Rich was rightly cautious of Obama's new Team Of Rivals because they all came out of the Washington-New York group think.

Ironically, Obama, other than having graduated from Harvard, is the opposite of most Washington elites. He spent most of his career on the Southside of Chicago and most of his political life as a State Senator. We can all agree he is doing okay.

It is highly likely that Obama will make an appointment to the court sooner, than later. He has indicated that he is looking for the next Earl Warren. It can be argued that Earl Warren is the most important figure of the 20th Century. The Warren Court reshaped race in the country in Brown v. Board of Education; he gave every citizen protection from police misconduct with the Miranda v. Arizona ruling; and he established the principle of one person, one vote in Reynolds vs. Sims.

Earl Warren, for the most part, was a politician. He was a former District Attorney from Sacramento and Governor of California. Warren’s common life with common experiences helped shape his leadership on the court. Warren always considered how the law would impact upon ordinary citizens. To conservatives, he was the anti-Christ. They argue, with some merit, that Warren shaped the law to fit an outcome. However, I don’t think anyone believes that the country would go back to pre- Warren, if it could.

Obama’s first appointment should have a background as a trial lawyer or state court judge. He or she should be someone who, has either represented regular people or had to make rulings that affect their lives, and had to see the look on their faces and families after they ruled. Obama should not appoint some cloistered intellectual who has argued theory his or her whole life. And they ought not to have lived in Washington or New York.

The country has gone over 40 some years without a great liberal voice on the court. It is time to bring some balance back.