Michael Gerhardt Quotes
The process has failed to prevent the President, the Senate, or both, from caring primarily about the immediate political gains of an appointment, and thus from being indifferent or even consciously opposed to considering any of the factors truly relevant to selecting competent jurists.
From time to time, the assessment of a prospective Supreme Court justice has depended on an attempt to move the court in a particular direction or to prevent that. This is as opposed to the issue of the competence of the nominee. In most cases, such nominees may not have been the best qualified but they have been extremely competent. In a few cases, such as that of Justice Clarence Thomas, the justice was mediocre and inexperienced at best, but his virtues were his race and his total ideological consistency. Most attorneys can predict his vote in advance. He has never asked a question in oral arguments. See {623452} .
Michael J. Gerhardt, Constitutional Legal Scholar, Observation on the Supreme Court Selection Process, Divided Justice: A Commentary on the Nomination and Confirmation of Justice Thomas, 1992
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In America, the best attorneys have stayed in private practice where they could make much more money than government service or become professors and scholars of law. In either case, most have a track record that would make Senate confirmation difficult even if they wanted to be Federal Judges. A few like Abraham Lincoln went into politics. The Supreme Court is somewhat of an exception because of the power it wields, but even then many great attorneys have not been so inclined. Federal judges have usually been above average as attorneys, but not among the greatest.
Over 30 states at the time required state judges to stand for election. The result was that they had to have money to finance their campaigns like any other politicians. The results were many cases of lack of impartiality and enormous public perception that the judges were beholden to large campaign contributors. Justice O’Connor pointed out to them that they had created their own problems by popularly electing judges.
See Abraham Lincoln for a similar view.
G. Harold Carswell was nominated to a vacancy on the Supreme Court by President Nixon. The nominee did not have a reputation as a distinguished jurist. Senator Hruska defended the nomination:
The judiciary in the American system must give deference to the executive and legislative branches and interfere only when there is a violation of the Constitution. Many of the laws may well be viewed as bad policy by the judge, or in some case, may be unjust. The judge however cannot interfere just because he is dealing with bad or unjust laws. So Judge Scalia points out that the judge functioning properly in the American system will find that he personally does not like the consequences of his own opinions.
Michael J. Gerhardt is the Samuel Ashe Distinguished Professor of Constitutional Law at the University of North Carolina School of Law in Chapel Hill. He is also the director of the Center on Law and Government at the University of North Carolina at Chapel Hill and is an expert on constitutional law, separation of powers, and the legislative process. He is a Scholar in Residence at the National Constitution Center and Visiting Scholar at the University of Pennsylvania Law School. On December 2, 2019, it was announced that Gerhardt would testify before the House Judiciary Committee regarding the constitutional grounds for presidential impeachment in the impeachment inquiry against Donald Trump.
