Brian Leiter: "Supreme Court Nominations are Controversial because the Court is a Super-Legislature"

Let's start telling the truth about what the Supreme Court does
Brian Leiter
The Washington Post
March 20, 2017

Ordinary Americans may be understandably perplexed by the controversy over nominating a judge to the highest court in the land. Isn’t appointing a top judge like appointing a top chemist? You want someone technically competent and professionally responsible, and that is all.

But all lawyers and all political insiders making the choices know that is not so. Appointing a judge to the Supreme Court is much more like appointing a head chef to a complex kitchen than appointing a skilled technician to apply scientific laws to determinate facts. The chef’s tastes and preferences matter, no matter his or her technical competence in the kitchen.

Consider what is obvious: There is no difference in terms of qualifications and expertise between President Barack Obama’s nominee to the Supreme Court, Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit, and President Trump’s nominee, Judge Neil Gorsuch of the U.S. Court of Appeals for the 10th Circuit. Garland graduated from Harvard Law School and clerked on the Supreme Court; Gorsuch also has a Harvard law degree and also clerked on the Supreme Court. They are clearly both very experienced and well-credentialed jurists. Yet Garland never even got an up-or-down vote in the Senate, while Republicans expect Gorsuch to be voted on and confirmed. Why all the high political drama?

The answer is simple and has to do with the fact that law is not anything like science — and that what the Supreme Court does has little to do with the dispassionate application of clear laws to clear facts.

Faculty: 
Brian Leiter