“I’M NO ONE TO JUDGE, BUT…”

4/17/10

This morning’s (i.e., Saturday, 4/17/10’s) Wall Street Journal reports that some senators are advocating for the nomination of a politician, rather than a judge, for the soon to be vacated Supreme court seat of Justice John Paul Stevens. While there is plenty of historical precedent for such a nomination (Earl Warren, Hugo Black, William Howard Taft), one wonders how sharp the distinction is, in the new and debased America, between judges and politicians. But such questions, and the advisability of appointing politicians to the Court, are not the subject of this post. Rather, this post deals with a comment made by someone described by the paper as a “White House advisor” when asked about the possibility of a politician on the Court.

Anita Dunn, the aforementioned advisor, is described, but not quoted, as such:

Political figures typically understand the struggles of everyday Americans, and are often skilled at building coalitions, (Ms. Dunn) said.

Only a political figure could say, with a straight face, that political figures understand the struggles of everyday Americans. The reason that we have the tea party movement, and the reason that most Americans, even those who consider themselves as removed from the tea party movement as anyone could be, are very angry is that politicians have no conception of the struggles of everyday Americans.

In modern America, the typical politician has made politics his or her career. He or she, sporting an outsized estimation of his ability to glean wisdom, experience, and character apparently by osmosis, has done nothing else but practice politics. S/he went to college, then to law school, then either worked as an aide to a state legislator or on Capitol Hill, or clerked for a judge, then ran for the state legislature and started working his or her way up the ladder, all the while never coming remotely close to working in the private sector or even holding a government job that involved responsibilities beyond posing for the cameras or prepping one’s popinjay of an employer for such “media events.” And, of course, if one is a Republican, one did all those things while piously proclaiming one’s fealty to the virtues of the “private sector” and the “real Americans,” especially “small business people” while assiduously avoiding any personal exposure to the vicissitudes that the private sector features in any post that involves more than selling one’s influence or working on a Washington coddled Wall Street.

One used to be able to make the argument, with some plausibility, that politicians are less cloistered than judges, but today even that argument falls apart. Besides the aforementioned point that the distinction between being a judge and being a politician is becoming increasingly theoretical, most judges actually practiced as lawyers, at least briefly, before going on the bench. Unlike the typical politician, their law degrees were used for more than impressive wall hangings. But even those judges whose practice of law was at best perfunctory before using their political connections to get an early appointment to the bench are no more hermetically sealed than your typical pol.

The larger point, of course, is that anyone who gets nominated to the Supreme Court, and to most lower courts, has done more than his or her share of politicking and ingratiating himself with the political structure that controls either Washington or his or her locality, so the politician/judge dichotomy is, in at least today’s America, a distinction without a difference.