The same edition of the New York Times that carried an assessment of the top three contenders for the imminent vacancy on the United States Supreme Court also carried a story that one of three Americans failed to return Census Bureau forms. I wonder whether there's a deeper moral in this innocent juxtaposition: Is the Supreme Court increasingly irrelevant to the lives most Americans live? Or, perhaps more to the point, are most Americans detaching from anything like a mainstream of common norms?
Elena Kagan, Diane Wood and Merrick Garland are three of the top contenders for the seat being vacated by Justice John Paul Stevens. Kagan is former dean of the Harvard Law School, and serves now as Solicitor General of the United States. Diane Wood and Merrick Garland are federal appellate court judges. They are part of the other, and affluent America; they are the sort of people who most likely returned their Census forms because they feel it is their civic obligation to do so. They are also as mainstream as one can get.
Each of the three contenders served as federal appellate court clerk, and, then, clerk to a United States Supreme Court justice. Kagan and Garland were graduated from the Harvard Law Review; Wood's academic roots are more modest: she was graduated from the University of Texas law school. All have experience as lawyers in the federal government, and all are legal academics. It appears that only Kagan has any experience in the private sector, working briefly at a white shoe firm, Covington and Burlington.
The Times makes much of the differences between the three. Ms. Kagan is seen by some as more concerned with gay rights than national security. Ms. Wood is considered by others to be hostile to Christians and too inclined to support abortion rights. Mr. Garland just might like big government and lean in favor of assuring that those accused of terrorism enjoy basic constitutional rights. Put another way, all could easily share the same limousine en route to a Georgetown dinner party.
And that's the problem. Each of these candidates sits atop the pyramid of Maslow's hieracrchy of need. Each has it all: affluence, fame, power. They lead privileged lives, far from need, far from foreclosure, far from the madding crowd that darkens the doors of almost every trial court in the land. For folks like this, the law is all about theory and legal doctrine. I suspect each would wet themselves if left alone with an actual client facing prison time for a crime he may, or may not, have committed.
I cannot fathom why President Obama finds it necessary to dip into the same cesspool of privilege for Supreme Court justices that has served the country so indifferently during the past three decades or more. Is this change?
Watching the debate about the nomination reminds me of appearing before a federal judge some fifteen years ago for several trials. The man was a distinguished intellectual. But he had never tried a case to a verdict as a lawyer. Appearing before him hurt: he tried mightily to do the right thing, but one sensed his discomfort in the rough and tumble world of need. In his world, clients had all the money necessary to do everything the law permitted. Most Americans make cost-benefit decisions about what they can and should do. The privileged rarely do.
Kagan, Wood and Merrick are all qualified to be Supreme Court justices. There is no doubt about that. But they are all also distressingly cut from the same cloth as members of the current court. Hasn't the president noticed, however, that this cloth is fraying? The tapestry of American society is becoming undone? We need new wine skins for the court; the skins old are bursting with the pressure of a nation polarized into worlds as different as Georgetown and Main Street, USA.
Why isn't the president looking among the ranks of the nation's Public Defenders for a justice? Or perhaps someone who has sat in a Legal Aid office counseling folks on how to keep their home? Why not a lawyer who has spent a decade of so facing juries, or explaining to clients just how difficult it is to overturn a verdict on appeal? It's easy for judges to regard trial error as harmless when they never face those harmed.
Change, the president promised. It is a promise unredeemed thus far in so far as judicial appointments are concerned. When it comes to the Supreme Court, its the same old cream churned into premium vanilla.
Is it any wonder many Americans ignored the Census? For many folks, reporting the details of their domestic life to a distant government feels alot like reporting to a foreign power. Kagan, Wood and Garland are each distinguished jurists. But they are also so far out of the mainstream as to live in a world apart from ordinary Americans.