Summer of SCOTUS 2: The Myth of Merit, part 1

Aughie and Nia discuss the educational backgrounds of the Justices, as well as their career backgrounds, political affiliations, and administrative experience. There are also several tangents taken.

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Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.

N. Rodgers: Hey Aughie.

J. Aughenbaugh: Morning, Nia. How are you?

N. Rodgers: I'm excellent. How are you?

J. Aughenbaugh: I'm good because once again, we get to talk about, if not, one of probably my most favorite intellectual subject and that is the United States Supreme Court.

N. Rodgers: Yes, as we're doing our summer of SCOTUS, this year we're not talking as much about cases as we are about, although I feel certain that at the end of the summer we're going to hit with a bomb and you'll get the last of these summer episodes will be, Oh and by the way here are 18 cases, that's all he's going to want to talk about, so be prepared for that you-all.

J. Aughenbaugh: Typically because at the point we're actually recording this episode, the Supreme Court still has not issued decisions in 33 cases for this particular term.

N. Rodgers: I have a theory about that which I want to get to in a minute, but I wanted to finish saying we're going behind the robe, behind the curtain.

J. Aughenbaugh: Yes, from behind the curtain.

N. Rodgers: We're trying to talk about the court in terms of its makeup and its relationships, the court as justices, like who are they? Then yes, there will be a wrap up at the end of the summer of the bombs that they dropped before they go on vacation. You know what they're going to do? They're going to drop that on the last possible day they can and they're all going to go out of town and it's going to be an analyst free for all.

J. Aughenbaugh: Sure, yes

N. Rodgers: You and Nina Totenberg and all those, Jeffrey Tubin and all those other people pull apart all of the rulings.

J. Aughenbaugh: [inaudible]

N. Rodgers: And tell us what it all means.

J. Aughenbaugh: Yes, when the time house, etc.

N. Rodgers: [inaudible]

J. Aughenbaugh: Adam Liptech from the New York Times. Robert Barnes from the Washington Post

N. Rodgers: All these people who hob knob together all of y'all. Anyway, but today's episode is especially interesting to me because as President, I have decided that when I replace all of the Supremes because I'm going to. I've just decided that's it. They're all retiring on my watch. We're going to start over. I'm not going to let anyone from Harvard serve on the Supreme Court.

J. Aughenbaugh: Nobody from Harvard?

N. Rodgers: Nope.

J. Aughenbaugh: You got a problem with Harvard.

N. Rodgers: Not particularly, but I have a problem with this idea that only people who go to Harvard can be Supreme Court Justices. Like there's this route you take to be a Supreme Court Justice and it seems to me that one of the things that you have to do is go to an elite and I'm picking on Harvard, but I'm talking about it in terms of representing the elite schools. I think we should pluck people from good schools. I'm not saying we should go find the worst possible law schools and we can't have those folks on the Supreme Court. I'm not suggesting that, but maybe schools that aren't quite so exclusive, maybe that's the word I want.

J. Aughenbaugh: I would probably go even further.

N. Rodgers: Okay.

J. Aughenbaugh: I think it's more than just education and we're going to get into this Nia. How do we define merit? Or how do we define talented or qualified Supreme Court Justices because as you pointed out, on the modern Supreme Court, so let's say we date the modern Supreme Court of the last roughly 30-40 years. Roughly the last 30 or 40 years, most of the justices have followed a very particular, if you will, educational and career path and it usually goes like this. They went to elite undergraduate institutions. They applied to and were accepted into elite law schools. Usually Harvard, Yale, Princeton. The big two are Harvard and Yale, so your comment about Harvard is well-founded. Then they do clerkships for federal appeals court judges. Then they do a clerkship with a Supreme Court justice. Then they go to work in the justice department of the US Federal Government or a big law firm. One of those big corporate.

N. Rodgers: Bob and Bob and Bob and Bob and Bob limited. Whatever it is, with all the names.

J. Aughenbaugh: Either in New York City or Washington DC. Occasionally they slum in Los Angeles, but it's usually the interstate 95 corridor.

N. Rodgers: By the way, those big law firms make unbelievable amounts of money.

J. Aughenbaugh: Yes.

N. Rodgers: They charge by the hour more than you and I make it a month.

J. Aughenbaugh: Or they take a faculty position in a top 20 law school. Then they get appointed to a lower federal court judgeship. By the way, they no longer slum at state court positions. They usually go now just to a lower federal court, judgeship or a federal appeals court position and they serve their 6, 8, 10 year. Then they get on a shortlist. That's the route. It was noteworthy Nia, when Justice Amy Coney Barrett had not gone to Harvard or Yale. She was a graduate of the University of Notre Dame Law School, which oh yeah by the way, is a top 20 law school.

N. Rodgers: It's an elite school. The thing is, it's not that I think there's anything wrong with elite law schools. Please hear me when I say this listeners. There's nothing wrong with elite law schools, but if you only have people who come out of a very narrow view of the law, which is taught at these institutions.

N. Rodgers: For instance, Harvard grinds out its students in all the same way, and they all are taught the same way to think about the law. If eight of the nine on the court at any one time are from Harvard, then they have a very narrow view of the law in the sense that they have been trained to think about it all in the same way. What I want there is somebody who was trained to think about it in a different way from a different school.

J. Aughenbaugh: You're talking about training and education. Again, I would go one step further, Nia. They don't have a diversity of experience. They lack a diversity of education. They lack diversity of experience. We get all the same types of people serving on the court. We're jumping the gun here a little bit. Let's go ahead and take a step back. This podcast episode, in the reason for, is earlier this year when Justice Stephen Breyer announced his retirement from the Supreme Court, there was a pretty extensive discussion of who should replace Justice Breyer. In the press, Nia and I both noticed that there was a lot of discussion of "merit". I offhandedly joked to Nia one Friday morning before we recorded a different podcast episode, "Oh, you're talking about the myth of merit." Nia's eyes just got big and she was just like, "What do you mean?" I said, "Nia, I don't think most Americans understand that the US Constitution lists no qualifications, no requirements for somebody to be a federal judge."

N. Rodgers: Right. Sorry, listeners we had that discussion off, we've mentioned it a few times since then in podcast episodes. But these people do not have to have any educational requirement. They don't have an age requirement. They don't have to be a citizen in the United States. They have less requirements than to be President of the United States.

J. Aughenbaugh: Yes.

N. Rodgers: They have the job for life. That should be alarming to us as a country. That there's no bottom, there's no base. You don't even have to have been a lawyer.

J. Aughenbaugh: When I tell people that, because they'll ask me, what do you think of President so and so nominating X person for the US Supreme Court? I'm like, they more than likely will do fine, and they're like, but they didn't do this or they didn't do that. I'm like, well, the US Constitution doesn't even require them to be a lawyer or have any judicial experience. When I say that to people their eyes just get huge I'm like, well, it's not required in the Constitution. If we think about the Constitution as the owner's manual for this vehicle known as the American form of democracy, they don't have to be lawyers, they don't have to be judges, they don't have to have graduated from law school. Now, there are qualities that many of us could hope they possess.

N. Rodgers: Well, and are customarily looked for, I think.

J. Aughenbaugh: For, in terms of judging. Well-known political scientists, judicial selection scholar Sheldon Goldman came up with a list of attributes. Many of these attributes, strike me as good ones for judges to have, right, Nia?

N. Rodgers: Right.

J. Aughenbaugh: Things like, they're neutral to both parties in a case.

N. Rodgers: If they're not neutral, they recuse themselves.

J. Aughenbaugh: They recuse themselves.

N. Rodgers: This is my brother coming before me. I can't honestly rule in this instance. Because I love my brother, so I'm going to step back and let somebody else judge.

J. Aughenbaugh: One of my offspring is the attorney for one of the parties. I should probably recuse myself. Particularly if they weren't my favorite. No, I digress. We want fair mindedness. We want them to be well-versed in the law. But how do you measure that? How do you measure fair-mindedness? The ability to think and write logically and lucidly.

N. Rodgers: Which I think is incredibly valuable considering some of the opinions that I've read.

J. Aughenbaugh: Yes.

N. Rodgers: Being able to communicate your ideas clearly, is really useful to the courts that will come behind you to try to implement all Supreme Court decisions or affect lower court decisions.

J. Aughenbaugh: Lower court decisions or even practicing attorneys. How do you make sense of the latest missive from the the nine Supremes about searching seizure if they don't write clearly? How do you give good legal advice? Personal integrity. As we discussed in a previous podcast episode, some of the justices were really good people.

N. Rodgers: You shouldn't be a lying lawyer that lies, is what you should not be.

J. Aughenbaugh: Good physical and mental health. This is important because as Nia you just mentioned, they have life tenure.

N. Rodgers: There's a reason that lifer prisoners workout. Because you have to be physically fit and mentally fit in order to survive that environment. I'm just suggesting, I'm not saying that the Supreme Court is like being in prison, except maybe slightly it is, in some ways.

J. Aughenbaugh: Some of the justices, as we've discussed, they viewed it that way, because they didn't like the monkish existence of working on the Supreme Court.

N. Rodgers: I would agree for sure that you need good mental health.

J. Aughenbaugh: Yes.

N. Rodgers: You probably need an excellent therapist.

J. Aughenbaugh: Or really good spouses and friends.

N. Rodgers: Exactly. People that you lean on who help you put aside the pressure of the job, because it's enormously. We're going to get to pettiness in a little bit, aren't we?

J. Aughenbaugh: Yeah.

N. Rodgers: Put non smart people in the room and see what happens. Anyway.

N. Rodgers: I think the last two on Goldman's list are the two most important, actually.

J. Aughenbaugh: Judicial temperament and the ability to handle judicial power sensibly. Now in regards to judicial temperament, what Sheldon Goldman met was this idea that you understand that you may not necessarily be the most important actor in a case.

N. Rodgers: Right.

J. Aughenbaugh: Your job is to go ahead and settle a dispute. The case isn't about you. It's about the two parties that somehow have come to the conclusion that they are right and the other party is wrong, and they need somebody to go ahead and find a solution.

N. Rodgers: I just listeners, I'm so sorry to admit this to you, but I'm just going to go here. I occasionally watch court cam, which is a YouTube channel about people who act out in court. Judicial temperament to me, also, has to do with remaining cool when people in the room are losing their minds. Part of what that is is the pressure of being in a court situation. I think for most people is something they don't frequently experience. They have out-sized reactions to what goes on in court because how many of us are in court every day? You can tell people who've been through the system before because there are a
lot more chilled than people who are going through it the first time. Because what you see on TV is very different than what happens in an actual courtroom. People get very emotional and the judge can't, the judge has to be totally chilled. I'm sorry, you're upset, but you can't use that language here. Calm down. They have to be that person because the other person, if they get mad than it feeds off each other, and then all of a sudden, everybody's.

J. Aughenbaugh: They got to treat both parties with respect.

N. Rodgers: Right.

J. Aughenbaugh: Try to explain the process because Nia as you pointed out, many people who go to the court, I've never been there before. Part of it is being an educator. Part of it is being able to reduce the temperature in the room. Because again, these are two people or two parties whose feel rather strongly in their lives may depend upon it. They have a lot resting on the outcome of the case and they're looking to the judge or a collection of judges to make them whole again. A judge might not be able to do that, but the judge is going to have to go ahead and say, "This is what you can expect from the process and this is what the court expects from you as somebody who has submitted to this process.".

N. Rodgers: Right. Then that last one, the ability to handle judicial power sensibly. I have to admit that some of the videos that are my favorite is so telling about me are when judges completely lose their cool and they yell, It's my courtroom and I will do what I damn well, please. You're like, "Okay, is that really how it works?" Now, technically, it is how it works because technically the judge is in charge of that room and can do as they please put handling judicial power, sensibly. Being fair, being honest, being truthful, but also knowing when you are part of the problem and being able to step back and say, "You know what, I have to recuse myself because I'm emotionally compromised in this situation." This defendant makes me bonkers or whatever.

J. Aughenbaugh: Or go beyond the context that you're describing in regards to a trial court. Think about appellate courts. Can you answer a question in an appeal in a way that settles the appeal, but doesn't go any further?

N. Rodgers: It doesn't relitigate the case.

J. Aughenbaugh: You're talking about judicial modesty. Understanding that court processes are in some ways very undemocratic. They have a vital role in the democracy, but they're not democratic.

N. Rodgers: Right.

J. Aughenbaugh: This is the push and pull of judicial independence versus the fact that many judges, particularly all federal court judges, are not held democratically accountable.

N. Rodgers: Right.

J. Aughenbaugh: How do you use that power sensibly so that you settle disputes but you don't go too far in settling the dispute?

N. Rodgers: What is meant by reading the law?

J. Aughenbaugh: To put this in context for a good chunk of our country's history. Well into the 20th century, most supreme court justices did not have elite education, did not go to law school. Many of them weren't even judges. If you really want a good exposure to this listeners, I highly recommend Ben Barton's B-A-R-T-O-N. Then Barton's recently published book through prudential court. Most of our justices of the United States Supreme Court throughout the 19th century and some into the 20th century read the law, meaning they reached out to a practicing attorney and ask that attorney for a syllabus, if you will, of books or treatises on understanding the legal profession and legal theory and legal doctrine.

N. Rodgers: They basically law Schooled themselves?

J. Aughenbaugh: They lost schooled themselves, and then they typically followed it up, Nia by doing apprenticeships where they would work in a law office. By the way, listeners, most law offices throughout the 19th century were one or two person practitioner offices.

N. Rodgers: These big law firms that you see now are a modern.

J. Aughenbaugh: Yeah, there are modern.

N. Rodgers: It's a modern, that's industrialization of the law.

J. Aughenbaugh: Yeah, industrialization of the law. That's right. They did apprenticeships and they were part paralegal, part legal secretary, part Clerk.

N. Rodgers: They did all of it. They did research, they went and did the boring stuff at the courthouse where you just put in forms, because I'm here to tell you listeners that the vast majority of what law firms do are fill out forms.

J. Aughenbaugh: Yes.

N. Rodgers: They just have to be done at the right time in the right order with the right signatures or you get messed up. That's why you pay somebody to do that. But they basically are a huge secretarial.

N. Rodgers: A lot of what they do is that thing. What you see on TV where they are accused in court and they're doing all that stuff. That's the culmination of several months of boring reading and filing forms.

J. Aughenbaugh: After they did an apprenticeship then they took the bar exam within their state.

N. Rodgers: But if you don't have to be a lawyer, you don't have to have taken the bar exam in order to be a Supreme Court justice, right?

J. Aughenbaugh: No, you don't have to, but to practice law in all 50 states, you have to pass the bar.

N. Rodgers: Well, you have to pass the bar of that state. There is no national bar.

J. Aughenbaugh: That is correct. But again, most of our Justices well into the turn of the 20th century. We're not judges before they became Supreme Court justices. They practiced the law.

N. Rodgers: They were just lawyers, they just represented people that are more loyal.

J. Aughenbaugh: They add varied professional experiences.

N. Rodgers: So the thing you're talking about with the modern style of going to the Elite undergraduate, Elite graduate, yada, yada, yada. I know that we have a couple of justices on the Supreme Court who grew up in less financially advantageous circumstances do like how I said that.

J. Aughenbaugh: Let's be very clear here with our listeners. Two of our nine current Supreme Court justices grew up poor. They were in a lower social economic class. Who we're talking about is Justices Clarence Thomas and Sonia Sotomayor.

N. Rodgers: Did they still follow that same pattern?

J. Aughenbaugh: Yeah, they did. Because with Justice Sotomayor, she did Princeton and Clarence Thomas, he got a scholarship to Holy Cross University. If you don't know, Holy Cross University it's a really prestigious, rigorous liberal arts undergraduate institution. Then he went to Yale.

N. Rodgers: Even if you're poor currently you're expected to go through this?

J. Aughenbaugh: Sure, yeah. There are various reasons why we've taken that term. There are various reasons that scholars have pointed to. But one of the most prominent ones is the fact that the confirmation process has become so politicized that Presidents are using these credentials as a way to go ahead and say, "You may not like the ideological perspective of X nominee, but they check all the boxes. They have their credentials. So how can you vote against them?

N. Rodgers: Oh, I see. Let's say that you came up for nomination your undergraduate was Penn.

J. Aughenbaugh: University of Pittsburgh.

N. Rodgers: Then UVA for your graduate work?

J. Aughenbaugh: No Tech.

N. Rodgers: Oh, right. So you continue Tech for your graduate work.

J. Aughenbaugh: Oh, yeah. They would have a field day with me at the Senate Judiciary Committee hearings.

N. Rodgers: You haven't served as any sort of judge in the lower?

J. Aughenbaugh: Yeah. I didn't have any clerkships. I was a garden variety bureaucrat.

N. Rodgers: Oh, they're going to love me when I make you Chief Justice. They're going to love me. They'll be like, the President has lost her mind.

J. Aughenbaugh: They'll have all kinds of fun with me for the fact that for the last quarter century, I taught at two public universities, Virginia Tech and Virginia Commonwealth University. They're going to be like, what?

N. Rodgers: You couldn't make it at an elite institution? I'm going to be slapping down some senators. But also what's frustrating to me about that is in part something you mentioned before and I know we're going to actually talk about it in our next episode. So I don't want to get too far into it. But the Chief Justice needs a different skill set than the other justices. The other justices need to bring law chops, legal chops. They need to be able to make coherent legal arguments and understand coherent legal arguments and convince each other of things. They need to do all that. But the Chief needs to be an administrator, like you're administrative law focus is perfect for the Chief Justice because that's running an organization and it seems to me that we haven't figured that out as a country.

J. Aughenbaugh: It's a unique organization. Nia, one of the more unusual characteristics of the Supreme Court and you mentioned this earlier in this podcast episode. All nine people who serve as Supreme Court justices by and large for roughly the last 35, 40 years, have been told all their lives that they are the smartest kid in the room.

N. Rodgers: Well, and they've also been in charge of things, right? They've been in charge of their courtroom. Almost a treatment of royalty in the way that courts, like everybody in the courtroom stands up when the judge comes in.

J. Aughenbaugh: But I'm talking about trial courts, but most of these folks have been appellate court judges. They haven't even had to deal with most of the, please excuse the expression, the unwashed masses.

N. Rodgers: I'm was going to say the scum of the earth. Yes.

J. Aughenbaugh: The general, if you will, populace.

N. Rodgers: Us.

J. Aughenbaugh: Us.

N. Rodgers: The bourgeois, rather, us the people. They have not had to deal with it. Same with if they've been a professor at an elite institution. Or if they've been in the Justice Department, if they've been the Attorney General. When's the last time the Attorney General just sat down with somebody like you and me and heard out there.

J. Aughenbaugh: Never.

N. Rodgers: They have minions for that.

J. Aughenbaugh: The current US Attorney General was Merrick Garland. Before that, he was the Chief Judge of the DC Circuit Court of Appeals, the main administrative law court of the United States. Now, earlier on in his career, he was a US attorney where he prosecuted people.

N. Rodgers: He did have to actually talk to regular [inaudible] .

J. Aughenbaugh: Yeah. But that's like 30 years removed.

N. Rodgers: There's a thing you're going to get to later about what they ought to have to do now, which I just love it. I can't wait, sorry, I'm teasing out for the listeners.

J. Aughenbaugh: It's a proxy, okay?

N. Rodgers: Okay.

J. Aughenbaugh: Credentials have become a proxy in a very partisan battle, okay?

N. Rodgers: Okay.

J. Aughenbaugh: Because again, the assumption of Presidents, of senators, of media, of interest groups is that federal judges today are basically policymakers who just wear funny clothes.

N. Rodgers: As they treat them as part of collateral system as opposed to the judicial system.

J. Aughenbaugh: System, right?

N. Rodgers: Okay.

J. Aughenbaugh: Okay, and because that is the assumption, credentials now act as a shield for whom ever a President picks, right?

N. Rodgers: Got you.

J. Aughenbaugh: I'll just pick on the last two Presidents. President Joe Biden picked federal court Judge Brown Jackson to replace Stephen Breyer. One of the first things he went ahead and mentioned was she went to Harvard. She was a clerk. She even clerked for the justice she's going to be replacing Stephen Breyer.

N. Rodgers: Tick on the boxes.

J. Aughenbaugh: Yeah. So even if you've got a problem with her ideology.

N. Rodgers: You can't ding her on the.

J. Aughenbaugh: She still has the "merit to serve as a justice." President Trump, he went ahead and picked Amy Coney Barrett. On one hand, Amy Coney Barrett didn't go to an Ivy League Law School. She went to the University of Notre Dame. Oh my goodness, no. But she clerked for Justice Scalia. She was a tenured law professor at the University of Notre Dame. By the way, she had served a couple of years on the, I believe, Sixth Circuit Court of Appeals, check in the box.

N. Rodgers: But can I ask a question about that?

J. Aughenbaugh: Yeah.

N. Rodgers: It sounds to me like and correct me if I'm wrong, Donald Trump chose based on ideological viewpoints. She is a conservative.

J. Aughenbaugh: Yes.

N. Rodgers: His party wanted conservatives put on the court. It sounds to me like, I don't know if Biden did this with Brown Jackson, but the Democrats tend to choose in terms of who's been a party line person.

J. Aughenbaugh: Yeah, so what you're talking about is what judicial politics scholar David O'Brien identified as three different types of selection used by Presidents.

N. Rodgers: If you pull off the shortlist, they're going to put forward.

J. Aughenbaugh: They're going to nominate to serve on the Supreme Court. Historically, Democratic Presidents have tended to emphasize what's known as patronage. You're going to reward those who have been faithful to the Democratic Party or who have been faithful to the President. In other words, Democratic Presidents use judicial nominations as a way to appeal to the base of the Democratic Party.

N. Rodgers: Cynically also for race relations.

J. Aughenbaugh: I mean, that's part of it.

N. Rodgers: Or demographic relations.

J. Aughenbaugh: Yeah, we're going to get into more of that in our next podcast episode. But to give you an example of how this works. Now, listeners, you've heard me say this before because we did a short podcast episode about President Biden's nomination of Judge Brown Jackson to the Supreme Court.

N. Rodgers: Yep, they're in the news episode on that.

J. Aughenbaugh: Okay, I think she was eminently qualified to be nominated. She has the judicial experience. She has plenty of other legal experience. In fact, she's one of our more diverse legal experience candidate nominees to the US Supreme Court in years. But let's also be very clear here. President Biden was checking various, if you will, boxes that were important to constituencies of not only him but the party. She was a woman, an African-American woman.

N. Rodgers: He announced he was going to look for an African-American.

J. Aughenbaugh: African-American woman.

N. Rodgers: Which irritates me and I think I said that in the episode that it took away from her qualifications because he basically said, "I'm going to go look for an African-American woman." I'm like, whoa, why don't you go look for a really good judge and if she happens to be an African-American woman, that's awesome. But don't make the selling point, because now she has to defend her qualifications forever. That's not cool because she is eminently qualified to sit on that.

J. Aughenbaugh: Qualified to serve on the Supreme Court. But Democratic Presidents.

N. Rodgers: He chuckled that up a little bit, I think.

J. Aughenbaugh: Yeah, again, see a previous podcast episode about public relations. But think about, for instance President Franklin Delano Roosevelt, a lot of his nominees to the Supreme Court where people who either did really good work for him or for the party.

N. Rodgers: Yeah, but he ended up with a box of scorpions.

J. Aughenbaugh: Okay, that's fine, but again, that was his selection process.

N. Rodgers: Okay, we're talking about the selection process, not the outcome.

J. Aughenbaugh: Whether or not a President used merit, because the first of FDR's nominees to the Supreme Court was Senator Hugo Black from the fine state of Alabama. Hugo Black never even finished law school.

N. Rodgers: Can you imagine somebody coming up before senate now?

J. Aughenbaugh: Yeah.

N. Rodgers: Just that would be the end of that.

J. Aughenbaugh: One of the main reasons why FDR pick Hugo Black, Hugo Black was one of the first Southern Democratic senators to support the new deal on the floor of the Senate.

N. Rodgers: Okay.

J. Aughenbaugh: Okay, so that's patronage, right?

N. Rodgers: Right.

J. Aughenbaugh: You did me a solid and you've continued to go ahead and do good work for me or the party, or the party would be really happy with this pick.

N. Rodgers: I'm going to reward you with the Supreme Court.

J. Aughenbaugh: Now, Hugo Black was considered one of the most important Supreme Court justices of the 20th century.

N. Rodgers: It doesn't mean that person isn't going to serve well.

J. Aughenbaugh: But they used politics. They used patronage. Conversely, Nia, as you pointed out, President Trump, like most republican Presidents since Richard Nixon, have tended to emphasize the ideology of a potential nominee. Now, do Presidents, Republican or Democrat, ask potential nominees, how will you vote on X if you become justice? No.

N. Rodgers: You don't think I do you really?

J. Aughenbaugh: No.

N. Rodgers: Even in the private vetting process?

J. Aughenbaugh: Everything that scholars have been able to unearth from what we've heard from those who've been in the rooms, Presidents, consciously avoid asking those questions.

N. Rodgers: But I bet they imply their expectations.

J. Aughenbaugh: There are ways to go ahead and figure out where a nominee falls.

N. Rodgers: Ideologically, you look at their previous opinions.

J. Aughenbaugh: Yeah, you look at their votes, you look at their opinions, you look at their law review articles.

N. Rodgers: Yeah.

J. Aughenbaugh: Okay, hey, think about this. Of the "conservatives" on the current Supreme Court, Roberts, Kavanaugh, Gorsuch, Elito, they all worked in Republican Presidential administrations, either in the Justice Department or as US attorneys.

N. Rodgers: Okay, so you know where they stand?

J. Aughenbaugh: Even clerkships.

N. Rodgers: All right, who you clerked for would have.

J. Aughenbaugh: Yes, even though many of the justices will actually pick one or two clerks every term, who don't think like them.

N. Rodgers: But still that's how you would figure out what their ideology is.

J. Aughenbaugh: Okay. But again, that's very political, right?

N. Rodgers: Right.

J. Aughenbaugh: It's not to say that these are talented individuals who don't end up being really good justices. But let's face it, Republican Presidents are tending to emphasize ideology.

N. Rodgers: Democrats pick people in terms of favor and friendship.

J. Aughenbaugh: Patronage.

N. Rodgers: Republicans pick people in terms of think like me and ideological similar world view. Okay, that's interesting.

J. Aughenbaugh: The third approach that O'Brien identified and probably the last President who used it was Eisenhower, was known as the bipartisan approach. Basically, the bipartisan approach was picking people to serve on the federal judiciary. That swore courts favor with the opposition political party. You do it enough to where you can go ahead and say, I did you this favor and on this nominee, I want you to trust me, I want you to go ahead and support.

N. Rodgers: Okay.

J. Aughenbaugh: It's quid pro quo, it's deal-making, but again it's not necessarily based on merit and that's what I have to remind students. When we talking about is this person qualified? Remember, this is
a political process the Constitution gives the President a perk. One of the perks of being President is you get to nominate people to serve on the federal judiciary.

N. Rodgers: Unless?

J. Aughenbaugh: The Senate vote or rejects them.

N. Rodgers: Well, or unless the senate rejects your ability to do that.

J. Aughenbaugh: Sure. But again, even with what you just mentioned, Nia that's political.

N. Rodgers: That was entirely about Mitch McConnell wanting to stop President Obama from putting forth a nominee.

J. Aughenbaugh: Affecting the balance on the Supreme Court.

N. Rodgers: Right.

J. Aughenbaugh: What we were talking about listeners is when Justice Scalia died in February of 2016.

N. Rodgers: Which was an election year.

J. Aughenbaugh: Which was an election year.

N. Rodgers: Mitch McConnell said, we will not hear nominations because it should be the new President not this current President, even though there was no President for that at all. Sorry, still a little bitter because that was a purely political.

J. Aughenbaugh: But again, I'm going to go ahead and go one step further in regards to the politics. What Mitch McConnell did was longer than what we've ever seen in the history of the United States where Senate did not act on a Presidential nominee for a Supreme Court vacancy. But unfortunately for Democrats, he was able to go ahead and quote a number of Democratic senators who had said previously, "If a vacancy occurred during a Presidential election year, I might not agree to vote or act on the outgoing President's nominee." Including prominent senators or former Senators, Chuck Schumer and wait for it, Joe Biden.

N. Rodgers: Because you have to be careful about saying what benefits your party shouldn't benefit the other party. I think it's wrong for both sides because in my opinion, one of the things that I will do when I'm President is nominate and then if they refuse to hear my nomination, then I will say, "Okay, I will find a way to punish the Senate until you hear my nomination no other business will happen, no money will flow, nothing will happen your constituents will lose their jobs and they will vote you out of office unless you hear my nomination because I'm not going to play this game." But then again, my politics are probably more like slash and burn than other people's thought.

J. Aughenbaugh: But Nia, let's just say hypothetically, a President did what you just said. Again, I've said this to my students, President Obama had some choice. He didn't just have to sit there and take it. But he was not willing to if you will, spend valuable political capital on his nominee, Merrick Garland. He was unwilling to do it, I said, Mitch McConnell was playing a high-risk bluff.

N. Rodgers: Yeah, it was a game of chicken.

J. Aughenbaugh: We're a poker.

N. Rodgers: He won.

J. Aughenbaugh: Mitch McConnell was bluffing and instead of the President and the Democratic Party calling him on it, they chose to go ahead and continue to do business in the Senate. But as you pointed out, President Obama could have easily gone ahead and said, okay, fine, you don't want to act on my nominee? If the United States Congress passes any spending bills, I'm going to veto them. I will continue to veto them even if it shuts down the government until they give a hearing. Again, an otherwise perfectly competent nominee to serve on the Supreme Court.

N. Rodgers: Innocuous. Merrick Garland, he is the vanilla pudding of judicial nominees. Which brings me to a question that I want to ask you. How often are nominees rejected?

J. Aughenbaugh: The figure is less than 2 percent.

N. Rodgers: Okay. If you can get somebody in front of the Senate?

J. Aughenbaugh: Yes.

N. Rodgers: When did the process start being what I think of is brutal?

J. Aughenbaugh: So contentious, politicized?

N. Rodgers: Yes.

J. Aughenbaugh: Most scholars go back to the nomination of Abe Fortas to be Chief Justice in 1968, as when this process really went off the rails.

N. Rodgers: We've discussed in the previous episode.

J. Aughenbaugh: Yeah, just a quick history. Earl Warren announced that he was going to step down as Chief Justice and he did it so Lyndon Johnson could pick his successor as Chief Justice. Lyndon Johnson picked his good friend, Abe Fortas, who was already serving on the Supreme Court, you're going to be the next Chief Justice.

N. Rodgers: He had passed the question of merit because he was already there.

J. Aughenbaugh: He was already there but a combination of Southern Democrats, and Republicans who were still upset with the Warren Court Civil Rights Revolution from Brown versus Board, to expanding those accused of crime, their rights, to expansion of voting rights. It said letting criminals off on technicalities. They were so upset with the Warren Court. They punished Abe Fortas.

N. Rodgers: They made the hearing wildly contentious?

J. Aughenbaugh: They made it wildly contentious. They never officially took a vote on his nomination. It never got out of the Senate Judiciary Committee.

N. Rodgers: Okay.

J. Aughenbaugh: The democrats stewed, and got angrier and angrier, until they had their opportunity at payback. Their payback was with what nominee put forward by President Ronald Reagan deal.

N. Rodgers: Oh, Mr. Bork.

J. Aughenbaugh: Robert Bork, again, eminently qualified. In fact, when he had been put up for a vote to serve on the DC Circuit Court of Appeals, I think there were only two or three senators who voted against him. But he gets nominated to serve on the Supreme Court, and the Democrats went after him, and Robert Bork gave them all the ammunition he wanted, or they wanted because during his Senate Judiciary hearings, he actually worked totally, like fought with Senate Democrats on the same Judiciary Committee. Afterwards, pretty much every nominee to the United States Supreme Court, when they appeared in front of the Senate Judiciary Committee, basically give evasive non answers to questions. I can't answer that question Senator, because if that issue gets in front of the Supreme Court, I don't want to prejudge the issue.

N. Rodgers: It is a perfectly legitimate answer. That's what you should be saying, which is I'm not going to judge a case until I see the merits of the case.

J. Aughenbaugh: But what they're doing is in reaction to what happened to Bork.

N. Rodgers: Right, they're avoiding being pinned down on anything.

J. Aughenbaugh: Yeah, and it's known as the Ginsburg rule because when Ruth Bader Ginsburg was nominated to serve on the US Supreme Court, she responded over 100 times to senators questions. I can't comment on that Senator because if the issue gets in front of the Supreme Court, I don't want to prejudge the law or the constitution, etc., and Erik nominee set basically does that.

N. Rodgers: Just to sum up, let me ask a final question here. Basically what you're saying is, that you can have all the merit in the world. You can have ticked every box. You can be from the elite institutions. You can have been a fantastic lower district court judge or whatever it is. You can have all these things.
In fact, they can have voted you onto the court of a something like the tenth district or the ninth district with a 100 to zero, right?

J. Aughenbaugh: Yes.

N. Rodgers: But when you get in the Senate for the Supreme Court, it's all about the politics. Everything goes out the window, and it's about how the Senate feels about the President at that given time.

J. Aughenbaugh: Yes.

N. Rodgers: You are literally a pawn on that chess board, and it's not even about you. It's not anything about you. It's about whatever party is the lead in the Senate feels about the President.

J. Aughenbaugh: You become a proxy in a larger political battle, and both political parties now do it.

N. Rodgers: Right. I'm sure that it's a bi-partisan thing.

J. Aughenbaugh: Oh, it's tit for tat. It's playground justice.

N. Rodgers: But it's humiliating to the nominees.

J. Aughenbaugh: It's humiliating to the nominees, and it doesn't serve the public or the judicial branch all that well and I'm going to go back to Ben Barton's border. Ben Barton's argument is, are we getting better judges because they're so well credential. I'm going to use Sandra Day O'Connor. I have said this publicly in a number of forum. Today Sandra Day O'Connor would probably never even be nominated, let alone confirmed.

N. Rodgers: Really?

J. Aughenbaugh: Yeah. She went to Stanford, but she was a politician before she became a state judge. Can you imagine all of her votes as a politician, as a member of the Arizona State Legislature would be debated by the Senate.

N. Rodgers: I see. They would re-litigate her entire career.

J. Aughenbaugh: Yes.

N. Rodgers: It's in order to score points against political opponent. It has nothing to do with her.

J. Aughenbaugh: Nothing to do with whether or not she would be a good judge.

N. Rodgers: Which is she was a good judge.

J. Aughenbaugh: She was a great judge. Did she always rule the way I wanted her to? No. But she brought something to the Supreme Court that we don't have very much of today, which is, she understood that sometimes answering narrow questions is better than answering big, broad questions that bind the entire country.

N. Rodgers: Right.

J. Aughenbaugh: She was a swing voter.

N. Rodgers: She was a moderate.

J. Aughenbaugh: She forced both ideological ends on the court to compromise.

J. Aughenbaugh: Oh, good Lord, compromise?

N. Rodgers: What? Say it isn't heresy, I tell you heresy.

J. Aughenbaugh: But I don't think you would. One of my favorite Justices, Robert Jackson. He would never be considered today. Why? Because he never finished law school.

N. Rodgers: Right.

J. Aughenbaugh: He never finished law school. He was a solo practitioner in upstate New York.

N. Rodgers: I'm going to end on a positive note though.

J. Aughenbaugh: Okay.

N. Rodgers: The crap that they put Louis Brandeis through would not happen today.

J. Aughenbaugh: Yeah.

N. Rodgers: Just like Justice Brown Jackson, her race was not brought into question.

J. Aughenbaugh: Yeah.

N. Rodgers: Because even if it was in the minds of some of the people in that room, and I don't know, because I don't know what's in their heart and their mind. What I do know is it is no longer acceptable to publicly say, didn't Louis Brandeis have one of the most anti-Semitic hearings?

J. Aughenbaugh: Yeah. Listeners, what Nia is referencing is, Louis Brandeis when he was nominated by President Woodrow Wilson to serve on the Supreme Court in the 19-teens, was the first nominee who was Jewish, to serve on the court. It was accepted practice before his nomination, that nominees to the court never appeared in front of the Senate Judiciary Committee. the hearings were basically pro forma.

N. Rodgers: We got a name. It looks fine. Let's move on.

J. Aughenbaugh: But his process took weeks and you had individuals called to testify. We went ahead and just were openly anti-Semitic.

N. Rodgers: I can't put it a Jew on the court.

J. Aughenbaugh: You can't put a Jew on a court.

N. Rodgers: It'll be the end of the court.

J. Aughenbaugh: You know what Jews are like.

N. Rodgers: Right, that kind of dumb crap.

J. Aughenbaugh: The kind of anti-Semitic tropes that have been around for hundreds of years. He had to suffer through all that. Even though, again, in terms of qualifications, he was more than qualified, in fact, it was a step down in terms of his living career. Right?

N. Rodgers: Yeah.

N. Rodgers: He's ruling stand the test of time. He was a great justice. But I do think that we should say, at least even, sorry, the process is less about things like that now and because it's more about how the Congress feels about the President, it's an indictment of the President, not an indictment of the candidate, for the most part, and so the candidates are not treated, I would argue, as vilely as they have been in some cases. Aughie is going to say, no, I'm wrong on that.

J. Aughenbaugh: No. It's a different vile. It's open.

N. Rodgers: That's fair. It's a different vile.

J. Aughenbaugh: Some of the things that were said to, for instance, Judge Brown Jackson or Judge Coney Barrett, a couple of Democratic Senators on the Senate Judiciary Committee ask Coney Barrett about her religion.

N. Rodgers: Oh, I didn't know that. Never mind, then I am totally wrong

J. Aughenbaugh: But it's a different vile, right?

N. Rodgers: Right.

J. Aughenbaugh: I think as a political scientist, I don t think the process serves anybody really well today, right?

N. Rodgers: Agreed.

J. Aughenbaugh: Because when we talk about merit, almost immediately I go ahead and I asked the follow up question, how are you defining merit?

N. Rodgers: Exactly.

J. Aughenbaugh: Because what I would love to go ahead and see at a Senate Judiciary Committee hearing is Senators asking not got you questions, but meaningful questions of the nominees to see how they think. Do they act with judicial temperament?

N. Rodgers: I'm going to give you this scenario, hypothetical question. Can you tell me how you would pull it apart, how you would approach it?

J. Aughenbaugh: Yeah.

N. Rodgers: Would you start with research? What's your process when you're arriving at your decision?

J. Aughenbaugh: What precedents are you considering? What sources of law would you draw upon?

N. Rodgers: Yeah, that would be cool. But you and I both come out of the educational system and we care more about teaching people how to think than teaching people what to think.

J. Aughenbaugh: Also you and I have talked about, wouldn't it be nice if the Senate Judiciary hearings were like a meaningful job interview?

N. Rodgers: I'm going to actually ask you real questions, how do you handle adversity?

J. Aughenbaugh: Well I'm actually interested in your answer, not because I'm trying to find a reason to reject you or to go ahead and put you up on a pedal stool, but to actually find out, are you ready to be a Supreme Court Justice?

N. Rodgers: It gets at the idea of judicial temperament, which probably is the most important thing. I think you have a question at the end of your notes which I think is probably the question we should leave people with, which is, is merit in the eye of the beholder? I think it is in many ways. For me, the most important thing is temperament. Can you get along with the other eight people in the room? Can you make reasoned arguments? Can you accept when you lose gracefully? How do you handle yourself as a human? Because that's going to determine whether the court can work together or not. I keep referencing your scorpions because I just love that idea and it's also because they were black. These angry scorpions fighting with each other, nothing gets done when it's like that. It doesn't move the people's work forward.

J. Aughenbaugh: Yeah.

N. Rodgers: That for me is the most important.

J. Aughenbaugh: Well, for me, you've heard me say this before, Goldman's ability to handle judicial power sensibly, right?

N. Rodgers: Right.

J. Aughenbaugh: Maybe it's because I'm too much of a moderate, and maybe because of all my years of study, I've seen government officials and government institutions go too far.

N. Rodgers: For you, it's that one.

J. Aughenbaugh: That's the thing you would like to see exposed and discussed at Senate Judiciary confirmation hearings, but you don't get that because it's just an elaborate political play.

N. Rodgers: Just to throw out here as my last point for the episode is, it seems to me like the senators are hiring people for a job they themselves could not do. That is a dangerous way to hire people for a job. I don't hire construction workers because I don't know how to be a construction worker. I wouldn't know the first thing about judging the merit of a person's ability to build a home or to build anything, because I don't know how to build anything. Please trust me when I tell you I can barely put together Legos.

J. Aughenbaugh: I key your furniture instructions even when they're written in English, still read like a foreign language to me.

N. Rodgers: I'm glad they have pictures. But it still doesn't have one for me.

J. Aughenbaugh: My mind just doesn't work that way. When I am picking, for instance, people to work on my home or to work on my automobile, I will talk to others.

N. Rodgers: You consult an expert or friends at least.

J. Aughenbaugh: Yeah. I don't see that all that often in the Senate Judiciary Committee where the Senators or for that matter, Presidents.

N. Rodgers: But the other Supreme Court justices. They get no say in this at all. Someone is imposed on them, whether they want that person or not, whether they think they can work with that person. Really wouldn't you think that they would at least get some level of input of, I don't know if this person is going to work out with us or not.

J. Aughenbaugh: Or reach out to the justices and say, hey, what do you guys need with the future justice? Do you need somebody with criminal defense background?

N. Rodgers: Yeah. Exactly. It's weird to me that the Senate is the one, like wait, so 100 people who could not serve on the Supreme Court are going to pick the next person who serves on the Supreme Court? It doesn't seem right.

J. Aughenbaugh: At least the constitution clearly says this is a part given to Presidents.

N. Rodgers: We didn't serve on the Supreme Court, we can't serve on the Supreme Court either.

J. Aughenbaugh: Yeah. It is a strange, if you will, for a lecture process when you really think about it. Think about the number of Presidents who knew absolutely next to nothing about the judicial branch, right?

N. Rodgers: Right. They're going to pick a person, to sum up before 100 chuckle heads who are going to say, well, I have many thoughts and feelings about that. I don't care what your thoughts and feelings are about, you don t know how to be a Supreme Court Justice. It's a weird system we have. I'm surprised that other countries don't laugh at us behind our back.

J. Aughenbaugh: You know what's really funny, is how much other countries near or cherish, if you will, some of the values like judicial independence, where the Judiciary doesn't get completely overturned because a prime minister or President doesn't like a ruling.

N. Rodgers: Although we're having less and less of that. We're having less and less independence, which they say become embroiled in the political process. We're sliding from the beacon on the hill to maybe a lantern halfway down.

J. Aughenbaugh: Yeah. That's one of the reasons why I think handled judicial power sensibly is every once a while the federal courts need to go ahead and say, this isn't our circus. This isn't our clown show.

N. Rodgers: You-all get back in the car and go somewhere else.

J. Aughenbaugh: We didn't get hired for this birthday party, so we're moving on to the next one. Because when they do get involved, that's when the politicians, the media, the interests groups all come out with knives and arrows and occasionally guns and say, well, you guys interjected yourselves into this, so now you're going to encounter what other politicians deal with. I know this gets so complicated at times, but it does go back to how do you define merit, right?

N. Rodgers: Right. It deserves to be on the court and what do we want from the court? What do we expect from the court?

J. Aughenbaugh: Yeah. Again, you and I are products of higher education. You and I have a conversation every week, and we reflect the fact that we have multiple degrees, both of us. But at the same time, we're aware that there are some really smart people who don't necessarily follow the same career path as we did, and they shouldn't be rejected simply because they didn't follow the same educational and career path because there are a lot of different ways to define merit.

N. Rodgers: Exactly.

J. Aughenbaugh: That's why, the myth of merit.

N. Rodgers: Maybe what I'll do is pick a whole bunch of people who never even went to law school. All right, people, I need to be President. Let's start working on it.

J. Aughenbaugh: All right, Nia.

N. Rodgers: On that terrifying note, we'll see listeners next time.

J. Aughenbaugh: Thanks, Nia.

N. Rodgers: Thank you, Aughie.


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