One score and zero years ago, when I was a young and reckless political consultant, I took on what proved to be my most challenging campaign. In the spring of 1986, I signed on to manage a campaign on behalf of three of California's Supreme Court Justices, who were facing a reconfirmation election that November. (Under state law, voters were periodically able to vote Yes or No on whether to retain the justices.) By the time I came aboard, however, the justices were already an endangered species.
Chief Justice Rose Bird and Associate Justices Joseph Grodin and Cruz Reynoso had been appointed to the court during the '70s by then-Governor Jerry Brown, a liberal Democrat. By 1986, Brown's conservative Republican successor, George Deukmejian, had marked the judicial three for electoral extinction. For one thing, all three had played significant roles, before they were appointed to the bench, in helping the states' farm workers win workplace rights and better labor standards. Agribusiness, a major source of Republican cash, was ponying up big time to get rid of them. For another, by defeating the justices and appointing their successors, Deukmejian could create a Republican-friendly court to adjudicate the 1990 reapportionment.
Neither of these issues really mattered to voters, but Bird had provided an issue that they did care about. In her tenure as chief justice, 59 death sentences had come before the court, and she had voted to overturn all 59. The most recent polling as I took the helm of the campaign showed that 85 percent of state voters favored the death penalty. The same polling showed overwhelming public sentiment to replace Bird and her liberal colleagues, and Deukmejian and company were well on their way to turning the election into a referendum on the death penalty itself.
Not surprisingly, every liberal group in the state was in a panic about losing what had been the great American progressive state court ever since Governor Pat Brown (Jerry's dad) had begun appointing brilliant liberal jurists in the late '50s. When I first reported to work, I was greeted by a myriad of memos, in aggregate about the length of War and Peace, on how best to save the imperiled three. Most of the memos took the meritocratic approach, arguing that the only legitimate criterion for assessing the judges was their professional juridical competence.
Coming as they did from some of the most unashamedly political groups on the planet, with long records of advocacy on behalf of expanding the public's democratic decision-making powers, the memos made for disquieting reading. The one that pushed me over the top came from the California chapter of the left-wing National Lawyers' Guild, which argued strenuously that the actual content of the justices' decisions was not a legitimate basis for public scrutiny; merit – in the most narrow, desiccated, professional sense of the concept – was all that mattered. On this question, the left wing of the American bar sounded for all the world like Alexander Hamilton. I searched in vain for any countervailing Jeffersonianism, any sense that the public had a right to be concerned with the public policy outcomes of judicial decisions.
That convinced me. The campaign we ended up waging for the justices focused chiefly on the public policy implications of all their other decisions – on consumer rights and environmental preservation, that kind of stuff. And, just as I feared, it didn't matter a damn, what with the death penalty obliterating all other concerns. All three justices were soundly defeated; the California Court was transformed from the greatest of state courts to the center-right cipher it has been for the past two decades; and I – having lost in a single election an entire branch of government for at least a generation – decided to become a full-time journalist.
More crucial than all that, though, was the change that didn't take place. Twenty long years have passed since 1986, and liberals (or Democrats, anyway) are still suckers for judicial meritocracy. Only now, instead of invoking narrow meritocratic criteria in defense of liberal judges, some Democrats invoke those criteria to explain why they end up confirming such conservative judicial nominees as John Roberts and Samuel Alito. As a result, the Supreme Court has gone from a court with three hard-right justices, two center-right justices, and four center-left justices to a court with four hard-right justices, four center-left justices and one center-right justice – the 69-year-old Anthony Kennedy – who all by his lonesome holds the current balance of power.
The public-policy consequences of the court's transformation are already apparent. In mid-June, the court abandoned its longstanding “knock and announce” rule that required police both to have warrants and to announce their presence before entering somebody's home, ruling 5-to-4 that police were no longer required to state their intention to enter. Alito's predecessor, Justice Sandra Day O'Connor, had taken the position that homeowners' rights trumped the police's desire to enter unannounced, but the new court – that is, the four hard-right justices plus Kennedy – ruled otherwise.
In another decision earlier this month, the four right-wingers endorsed an Antonin Scalia opinion that would have eliminated the jurisdiction of the Clear Water Act over tens of millions of acres of wetlands, chiefly in western states. The four center-left justices affirmed that jurisdiction, and Kennedy sought to split the difference with an opinion requiring the Army Corps of Engineers to decide what was and wasn't a wetland on a case-by-case basis. Kennedy's confusing ruling is the one that counts, but if he is succeeded by a jurist in the Roberts-Alito mode, today's wetlands may become tomorrow's Wal-Marts.
A slew of crucial decisions will come down before the court adjourns at the end of the month, but the handwriting is on the wall. The new justices are moving the court rightward, yet a significant share of liberal and centrist political and opinion leaders either supported their confirmation or limited their opposition to them because Roberts and Alito were – in a narrow, professional sense – clearly competent and even excellent at the judge's trade.
To be sure, just four Democratic senators voted to confirm Alito, while the party's senators divided evenly – 22 to 22 – on confirming Roberts. But editorialists at many centrist papers and a significant number of center-left commentators, law professors, and the like backed their confirmation on strictly meritocratic grounds – as if the perspectives on public policy that the judges would so competently advance were of secondary concern.
This isn't to argue that we should feel comfortable making the case that Nebraska Senator Roman Hruska once made in defense of one of Richard Nixon's dim-bulb (and ultimately doomed) nominees for the high court, Judge Harold Carswell: that even mediocre intellects deserve a place on the Supreme Court. It is to say that American elite opinion has a dangerously limited set of standards for what constitutes merit – and that once those standards are met, all other considerations are more often than not discarded. Once it's clear that a judicial nominee had a near perfect GPA at Harvard, Yale, Columbia, Chicago, or Stanford Law, a prestigious clerkship and a stellar career, that's all we need to know. Indeed, as membership in elites has become something based on more measurable or less discriminatory standards than those of olden days – coming from a good family or the right religious background – the legitimacy and potency of such elite membership has clearly increased. Twenty years ago, some liberals were eager to argue that voters should retain Rose Bird because she had high LSAT scores, just as today, a range of centrists believe that Roberts' and Alito's LSATs should grant them entrée to one of the three supreme policymaking bodies (along with Congress and the presidency) in the land.
Merit on the Supreme Court wasn't always so narrowly defined. Once upon a time, presidents appointed justices whose previous careers were characterized by political leadership rather than judicial excellence or legal scholarship. Lincoln appointed his 1860 campaign manager David Davis, who in 1866 authored Ex parte Milligan, sharply limiting the federal government's ability to suspend the rule of civilian law in wartime. Harding appointed former president William Howard Taft. Roosevelt appointed Alabama Senator Hugo Black, who became one of America's foremost civil libertarians on the bench. He also appointed former Michigan Governor Frank Murphy and former South Carolina Senator James Byrnes. Eisenhower appointed California Governor Earl Warren, who used his political skills to produce a unanimous decision in Brown v Board of Education, and under whose leadership the court greatly expanded Americans' civil, political and social rights. Some of the former pols appointed to the bench turned out to be great jurists, some turned out to be duds – but the same is true of justices who went the elite-law-school-to-Wall-Street-firm-to-appellate-bench route as well.
In earlier times, though, a solid legal pedigree would not have been in itself sufficient to win center-left support for a Supreme Court nomination. Through the middle of the twentieth century, the old line Democratic Party, with its roots in big-city machines, the ethnic urban working class, and the white South, was hardly a pushover for a Harvard law degree. This is not to say that Democratic presidents of that period shunned legal excellence, as Wilson's appointment of Louis Brandeis and Roosevelt's appointment of Felix Frankfurter made abundantly clear. But in the days when Harvard and Yale were bastions of the WASP aristocracy, a Harvard or Yale degree was hardly proof positive of unquestioned merit – at least, not to leaders of Tammany Hall or the CIO.
But today's Democrats are new-age elitists compared to the party leaders of yore. Embracing a range of culturally liberal perspectives and often short on message for working-class whites, today's Democrats do splendidly at election time among voters with post-graduate degrees, only to be wiped out within the white working class. An analogous class transformation has taken place at many newspaper editorial boards, where shoe-leather journalists have long since been supplanted by vastly more proper, Ivied-Up opinionists. In both journalistic and Democratic circles, academic and professional credentials matter more than they used to. Sometimes this has positive effects, sometimes negative. But on the question of judicial appointments, the right has figured out that both these groups are suckers for meritocracy. Will future historians understand that we reverted to social Darwinism because we couldn't say no to a 4.0 GPA?
Harold Meyerson is editor-at-large of The American Prospect.