Wednesday, May 06, 2009

Picking Justices

Eugene R. Fidell

With the impending retirement of Justice David H. Souter, the country is both curious and anxious about what the Court’s direction may be as his seat is filled and, inevitably, as further vacancies arise. Must the next appointment go to a woman? A Hispanic? Are there too many Catholics? Too many Jews? Too many Harvard and Yale graduates or former Supreme Court law clerks? Is prior service as a federal appellate judge essential, or merely desirable, as Chief Justice Roberts has suggested, or is it downright undesirable?

I would like to add another question to that conversation: Do we need more Justices who have served in the military? Few people realize that four sitting Justices—John Paul Stevens, Stephen Breyer, Anthony Kennedy, and Samuel Alito—have served, one, Justice Stevens, on wartime active duty for a lengthy period.

My reason for raising the point comes not only in the interest of ensuring a broad experience base on the Court. More particularly, it comes out of concern that Justices who have not served in uniform may be--or may feel, which can amount to the same thing--at a disadvantage when dealing with this specialized field. A sense of inadequacy can take hold even of judges who seem utterly lacking in fear when tackling areas of law that are equally or more arcane. When they grapple with questions involving the military, these otherwise fearless judges begin to utter phrases like “deference being at its apogee” or “separate society.” This judicial caution risks giving the government an advantage that is so significant, and at times so undeserved, as to erode the adversary process in our highest court. Whether and how military experience will influence any particular veteran elevated to the bench will of course vary. But, counterintuitive though it may seem, judges with that experience are less likely to defer automatically than those who lack it.

Plainly, it would be as improper for a Justice with substantial military experience to assume the mantle of a specialized court as it would be for a trial judge to rely on personal knowledge of surgery when deciding a medical malpractice case. Still, it seems fair to suggest that having veterans on the Court can enrich the discussion and hold out the promise of careful scrutiny of government claims that might otherwise be embraced uncritically. Experience since 9/11 teaches that the Justices are not reluctant to test and, when appropriate, reject government claims sounding in military or national security matters. But the Executive Branch’s litigation advantage in these fields is so profound, and so hard to match despite the impressive mobilization of the civilian bar in the wake of the Guantánamo and other “enemy combatant” detentions, that a cautious approach seems justified. It is not desirable in a democratic society that the government have what amounts to a monopoly on learning or credibility in these areas, and it is therefore a good thing that law schools are increasingly offering courses in military and national security law.

Despite the number of sitting Justices who have served, it is likely that only a handful of the lawyers who currently have the credentials to be plausible candidates for appointment also have military experience. An appointment strategy that places particular emphasis on military service is therefore a tall order. Moreover, acknowledging military service as a qualification would likely mean tilting away from women, since far more men serve in uniform. This would have to be borne in mind by those responsible for evaluating candidates. These considerations will not always present difficulties, however. Increasing numbers of talented young people of both sexes who have served in the first or second Gulf Wars, Afghanistan, or elsewhere, are bound to make their way to law school and enter and ascend the ranks of the profession. Over time, therefore, it should become easier to find highly qualified veterans—both women and men—to serve on the Court. Among them will be jurists who can take their place in history alongside not only Justice Souter, but also the numerous present and past Justices who have worn the Nation’s uniform.

[Adapted from remarks at a March 6, 2009 symposium honoring Justice Stevens at the University of California, Davis, School of Law. The remarks will appear in a forthcoming issue of the UC Davis Law Review.]

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