Sunday, October 25, 2009

Dianne Feinstein should be the next U.S. Supreme Court justice

Now that Sonia Sotomayor has been robed and accommodated in her new sworn duty as Associate Justice of the United States Supreme Court, it is time to start advising President Obama on his next nomination to “The Nine.” Next April, John Paul Stevens will celebrate his 90th birthday, and he will celebrate his 35th anniversary as an Associate Justice eight months later. Even so, Stevens might choose to continue in his position for many more years if his health allows it, and he may long outlast some of his junior colleagues. For example, 76-year-old Ruth Bader Ginsburg, who has served on the Court for 16 years, has had recent health problems. Antonin Scalia and Anthony Kennedy, who are each now 73 years old and who have each served on the Court for more than 21 years, could also leave before Stevens.

We the people seem to share an opinion that wisdom arrives in a person’s sixth decade and then plateaus in the general case, but that wisdom somehow sophisticates and refines itself in a special way for those few people whom we have ensconced as U.S. Supreme Court justices. This is a silly notion, and perhaps a foolish notion, too. Yet we persist — and we live with the consequences as they unpredictably unfold decades later as 50ish liberals turn conservative in their old age while 50ish conservatives turn liberal. John G. Roberts took his seat at age 50. Samuel Alito sat down at age 56, and now Sonia Sotomayor is seating herself at age 55. Roberts, Alito, and Sotomayor might all still be sitting in their seats on the Court in the year 2040 — imagine that!

President Obama needs to break this mold he has inherited and has now continued, and to that end he should consider the following.

The U.S. Constitution and its supporting and elaborating laws require no specific qualifications for U.S. Supreme Court justices. Simply, the U.S. president nominates someone — literally anyone — and the U.S. Senate then either approves or disapproves of that nomination. If approval is granted, the nomination is confirmed, and a new justice is then seated on the Court.

Specifically, there is no citizenship-by-birth requirement, no age requirement, no education requirement, no licensing requirement, no American Bar Association acceptance requirement, no professional work experience requirement, and no requirement that in any way specifies any needed credential whatsoever.

Felix Frankfurter was born in 1882 in Vienna, Austria, where he emigrated from with his family when he was twelve, after which time he became a naturalized U.S. citizen. Frankfurter was a justice on the Court for more than 23 years. The youngest justice ever seated on the Court was Joseph Story at the age of 32, and the oldest was Charles Evan Hughes at the age of 67. Every justice who has served on the Court has been an attorney, but fewer than half of them ever graduated from an accredited law school. The last justice without a formal law degree was Stanley Forman Reed, who served on the Court from 1938 to 1957.

The longest-serving justice in the Court’s history, William O. Douglas, who was a justice for 36 years and 209 days, was 40 years old when he took his seat. He had graduated from Columbia Law School at age 26 despite a financially meager upbringing in the Pacific Northwest. After spending two years making false starts, Douglas taught law for seven years (mostly at Yale where he became an expert on commercial litigation and bankruptcy). He then joined the U.S. Securities and Exchange Commission, and three years later became SEC Chairman. Two years later, he became a U.S. Supreme Court justice. Before he became a justice, Douglas had never been a judge.

On the other extreme, William Howard Taft became the 10th Chief Justice of the United States two months before his 64th birthday. At age 30, he had been an Ohio Superior Court judge, and then was Solicitor General of the United States before becoming a judge on the United States Court of Appeals for the Sixth District at age 34. Nine years later, he was appointed Governor-General of the Philippines, and four years after that he became Secretary of War under President Theodore Roosevelt. When he was 51 years old, Taft became the 27th President of the United States. As President, Taft appointed six justices to the U.S. Supreme Court. After his one term as President of the United States, Taft taught at Yale Law School and served as president of the American Bar Association before becoming Chief Justice.

Prior to becoming the 14th Chief Justice of the United States at age 62, Earl Warren had never been a judge. However, he had served as California district attorney for Alameda County for fourteen years, Attorney General of California for four years, and Governor of California for almost eleven years. Warren retired from the Court three months after his 78th birthday and five years before he died.

Fifteen men who had been U.S. senators also served as president of the United States. However, only six men who had been U.S. senators also served as U.S. Supreme Court justices, including one who became Chief Justice. The last serving justice who had previously been a U.S. senator was Hugo L. Black, who had been a U.S. senator from Alabama from 1927 to 1937. Black then served 34 years as a justice on the Court, retiring on September 18, 1971, just one week before he died at age 85 years 7 months — 38 years ago! Only two U.S. Supreme Court justices were ever mayors. The last justice who had been a mayor was Frank Murphy, who was mayor of Detroit, Michigan, from 1930 to 1933. Murphy was a justice on the Court from 1940 to 1949 — 60 years ago!

The startling demographics of the current U.S. Supreme Court are these: 1) seven men and two women; 2) six Roman Catholics, two Jews, and one Protestant; 3) four Harvard Law School graduates, three Yale Law School graduates, one Columbia Law School graduate, and one Northwestern Law School graduate; 4) all nine justices had previously served as judges of the United States Courts of Appeals; 5) at least five of the justices are millionaires; and 6) Birthplaces: two from Trenton, New Jersey; and one each from Buffalo, New York; Brooklyn, New York; The Bronx, New York; Chicago, Illinois; Pin Point, Georgia; Sacramento, California; and San Francisco, California — eight city birthplaces and one small town, and seven birthplaces east of the Mississippi River.

What can be done about this? How can the mold be broken responsibly?

The answer is simple: nominate U.S. Senator Dianne Feinstein to be a U.S. Supreme Court justice the next time a seat becomes vacant.

Dianne Feinstein is 76 years old, so her career as a justice would probably last less than ten years. Feinstein was born in San Francisco, California, and graduated from Stanford University in 1955 with a Bachelor of Arts degree in History. In the late 1950s, she worked in the San Francisco District Attorney’s office. She first entered politics in 1961 when she worked to end housing discrimination in San Francisco.

Feinstein was first elected to public office in 1969 when she began her nine-year tenure on the San Francisco Board of Supervisors. She was President of the San Francisco Board of Supervisors when San Francisco Mayor George Moscone and Supervisor Harvey Milk were assassinated on November 27, 1978, so by law she succeeded to the mayoralty on December 4. 1978. She was elected mayor of San Francisco in her own right in 1979 and was reelected in 1983, serving until January 8, 1988. In 1987, City and State magazine named Feinstein the nation’s “Most Effective Mayor.”

In 1990, Feinstein made an unsuccessful bid for Governor of California, losing in the general election to then U.S. Senator Pete Wilson. On November 3, 1992, she won a California special election to fill the U.S. Senate seat vacated in 1991 by Pete Wilson. She then won reelection to the U.S. Senate in 1994, 2000, and 2006.

Throughout her almost seventeen years as a U.S. senator, Feinstein has continuously served on four U.S. Senate committees: Rules, Judiciary, Appropriations, and Intelligence. During the 110th Congress (2007—2009), she was chairwoman of the Senate Committee on Rules and Administration. During the current 111th Congress (2009—2011), she is chairwoman of the Senate Select Committee on Intelligence. Additionally, she is chairwoman of the Subcommittee on Interior and Related Agencies of the Senate Committee on Appropriations, and is chairwoman of the Senate’s International Narcotics Control Caucus.

In her service on the Senate Committee on the Judiciary, Feinstein currently serves on five different subcommittees: 1) Administration Oversight and the Courts; 2) Constitution; 3) Crime and Drugs; 4) Immigration, Border Security and Citizenship; and 5) Terrorism, Technology and Homeland Security.

Though U.S. Senator Dianne Feinstein has not earned a law degree from an accredited law school, she is certainly more knowledgeable and more steeped in the law than almost anyone else in the United States, including law school professors, practicing attorneys, and sitting judges — even perhaps including some sitting U.S. Supreme Court justices! Though her education in the law was not “formal,” it was no less complete than if it had been formal; in fact, her law education was both firsthand and thorough, and it was ingrained through and through like only front-lines political battles can — and do — ingrain things.

While other U.S. Supreme Court justices would consider and ponder the law before making a ruling in a case, Feinstein as a justice would relate to and experience the law instead — and there is a HUGE difference in those distinctions. While the other justices have an inherited ownership of the law that is mostly academic and intellectual, Feinstein would bring to the Court something new: a battlefield-scarred sensibility that would sometimes rightly claim “I helped build it” ownership, which is an ownership that knows exactly what is buried inside the constructs of the agreed upon language that was signed into law.

The language of the law can be messy, especially if it is what remains after contentious political battling and is the stuff of uneasy and unwanted compromise. As is, the U.S. Supreme Court sits distant and removed from the legislative fray, and consequently functions out of a mixture of deep learning and active imagination instead of firsthand knowledge. The U.S. Constitution allows for the Court to be “distant and removed;” such a thing is not forbidden, but neither is it required. It is the folly of our times that we have failed to cross-pollinate the Court with influences from outside of our nation’s judicial system, even though the law fully allows that cross-pollination to occur.

The United States has three branches of government in its Constitution that together in their interplay make and define the whole: The Legislative Branch, The Executive Branch, and The Judicial Branch. Fifteen of the 44 men who have served as president of the United States also served as a U.S. senator. At the same time, only six of the 111 men and women who have served as justices of the U.S. Supreme Court also served as a U.S. senator — again, the last serving justice of the six was Hugo L. Black, who left the U.S. Senate more than 71 years ago in 1937. What an enormous waste of talent!

During her career in politics, Dianne Feinstein has spent more than nine years as a government executive being mayor of San Francisco and more than sixteen years as a legislator being a U.S. senator. No one currently sitting on the U.S. Supreme Court comes even remotely close to that level of experience; in fact, no one currently sitting on the U.S. Supreme Court has ever served outside of the judicial branch of our government. Though Feinstein is a consummate team player, it is easy to imagine that she might give new definition to the term “upbraid” someday along the way if she were made a justice on the Court, especially in her dealings with Chief Justice Roberts and Associate Justice Alito. Certainly, Feinstein would be a quick study, and would also be a fierce and clever opponent in the forging of a majority.

Does Feinstein have faults? Yes, absolutely! Does Feinstein have political enemies? Yes, absolutely! Has Feinstein made mistakes along the way? Yes, absolutely! All of those “Yes” answers are the inevitable consequence of a long and successful political career in both local and national politics. In a December 2007 SurveyUSA News Poll in California, 51% approved of the job Diane Feinstein was doing as a U.S. senator while 39% disapproved. A 51% vote wins political elections, and Feinstein knows how to win political elections.

If all politics is local, then final considerations are things personal. Dianne Feinstein’s only child is San Francisco Superior Court Judge Katherine Feinstein. Dianne Feinstein is the daughter of a surgeon, and is the widow of a neurosurgeon, who was her second husband. She divorced her first husband, who was an attorney who later became a judge. Her current husband is a wealthy international businessman. But the deeper truth is this: Feinstein’s ethnic heritage is Jewish, though her maternal grandparents were of the Russian Orthodox faith after converting from Judaism to Christianity. Feinstein attended the Convent of the Sacred Heart High School and received a Catholic religious education while also going to Hebrew school and synagogue while growing up in San Francisco. Her stated religion is Judaism. On a U.S Supreme Court that currently has six Roman Catholics serving as justices, throwing Dianne Feinstein into the mix could create quite a show.

And so I nominate U.S. Senator Dianne Feinstein to fill the next vacant seat as an Associate Justice of the U.S. Supreme Court. President Barack Obama should do the same.

Epilogue: If Feinstein opened the U.S. Supreme Court door to wise people of all sorts, who might follow her? Four names come to mind: Bill Moyers (age 75), Madeleine Albright (age 72), and Ted Koppel (age 69), none of whom have law degrees; and John Danforth (age 72), who has a law degree and served as the U.S. Senator from Missouri for eighteen years, but was never a judge.

Steven A. Sylwester
October 25, 2009