Politics & Policy

Thinking Outside The Judge Box

Non-judges can make fine Supreme Court nominees.

The chattering classes are abuzz. Who, they ask, will George W. Bush riappoint to the Supreme Court, should he have the opportunity to replace one of the current nine justices?


Conventional wisdom has it that Bush will nominate a sitting or former judge. Frequently mentioned is current White House counsel and former Texas supreme-court justice Alberto Gonzales. Bush recently selected Gonzales to serve as attorney general, paving the way for a future nomination to the high Court.

Also often mentioned are a number of sitting judges including federal appeals-court judges J. Michael Luttig, J. Harvie Wilkinson, Emilio Garza, and Michael McConnell, and California supreme-court associate justice Janice Rogers Brown, among others.

The nomination of a former or sitting judge would be consistent with what we’ve seen in the recent past. Of the current nine justices on the Supreme Court, eight came to the court with previous judicial experience.

But despite this trend, prior judicial service has never been a prerequisite for appointment to the Supreme Court. President Nixon nominated Chief Justice Rehnquist to the court from his position as assistant attorney general for the office of legal counsel in the Justice Department. At the time, Rehnquist had no judicial experience.

History is filled with examples of justices appointed directly to the court without prior judicial service. Former Chief Justice Earl Warren was governor of California when he was nominated by President Eisenhower. Lewis Powell was a practicing attorney who had been president of the American Bar Association. Byron White was nominated from his post as deputy attorney general.

Imagine the possibilities if Bush decides to follow in this fine tradition of selecting justices from outside the judicial branch:

‐Although Senate Judiciary Committee Chairman Orrin Hatch has long been mentioned as a potential Supreme Court nominee, Hatch’s junior colleague Jon Kyl would also be an excellent choice. Kyl is a conservative second-term senator and former congressman from Arizona. As chairman of the Subcommittee on Terrorism, Technology, and Homeland Security, Kyl has earned a reputation as a sharp and well-prepared legislator. He would likely be easily confirmed, assuming his Senate colleagues pay him the customary Senatorial Courtesy.

‐Outgoing energy secretary and former Michigan senator E. Spencer Abraham would also make an outstanding choice. In addition to having a brilliant legal mind, the Harvard Law grad would be the first Arab-American on the court.

‐Former Oklahoma Governor Frank Keating would also make a fine Supreme Court justice. Keating’s potential as a jurist was recognized by President George H.W. Bush, who nominated him to a seat on the federal appellate bench at the end of his presidency. When the elder Bush lost his bid for reelection, Keating’s nomination lapsed. Keating later became governor of Oklahoma, where he earned acclaim for his handling of the tragic Oklahoma City bombings.

‐Like Keating, University of Virginia law professor Lillian Bevier was nominated to the bench by President Bush’s father, but was not confirmed when Bush lost re-election. The well-respected constitutional scholar is known as an expert on the First Amendment and intellectual property. Bevier is adored by conservatives and would bring serious intellectual firepower to the Court.

‐My first choice, however, remains Washington lawyer Miguel Estrada. The Honduran immigrant and former assistant solicitor general is widely viewed as one of America’s finest legal minds. Although Senate Democrats filibustered Estrada’s nomination to the D.C. circuit last year, this should not preclude Bush from appointing Estrada directly to the high court. The Dems got away with their discriminatory mistreatment of Estrada when they could keep their actions off the radar screens of most Americans. With all of America watching, and a smaller margin in the Senate, the Dems wouldn’t have the cojones to “Bork” the first Latino nominee to the Supreme Court.

There is no reason why Bush should feel compelled to appoint a sitting or former judge to the Supreme Court. By nominating of any of the above outstanding lawyers, Bush would make a bold statement while operating within a longstanding tradition of Supreme Court nominations.

Jennifer C. Braceras is a commissioner on the U.S. Commission on Civil Rights.


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