Legal Commentary

Given my appalling performance as a blogger -- I've been post-less since March -- I have some nerve calling out other people as unqualified for a position involving lots of writing. But it is exam-grading time, and shame cannot stand in the way of my need for a distraction. My inspiration for this particular post is the appalling news that Governor Jennifer Granholm remains a possible candidate to fill Justice Souter's seat on SCOTUS.

The continued mention of Granholm as a contender for David Souter?s seat is appalling for two reasons. The least interesting reason is that Granholm is spectacularly unqualified: Her nomination would be (in Woody Allen's immortal phrase) ?a travesty of a mockery of a sham of a mockery of a travesty of two mockeries of a sham.? The more important reason is that Granholm?s presence on the ?short list? suggest more generally that encouraging Presidents to nominate politicians for judicial posts is a bad idea, because they will tend to nominate the wrong sort of politician ? namely, politicians who have done them favors in swing states or who need to be ?kicked upstairs? to make room for other politicos in such states. (Granholm, by the way, fits both categories).

But, first, why would Granholm?s be such a terrible nomination?

The reason is not merely that Granholm has never distinguished herself in any capacity remotely relevant to serving as a judge (e.g., writing legal opinions of any sort, making tough legal decisions, or cobbling together legal compromises). The bigger issue is that Granholm has repeatedly demonstrated the cowardice of her convictions in failing to take any strong stand up against the abuse of prisoners that is prevalent at the Michigan Department of Corrections. Two Michigan juries have awarded $60 million in damages against the Michigan Department of Corrections for the egregious sexual abuse of 18 female inmates by MDOC's employees. One of the juries actually apologized to the plaintiffs for their treatment at the hands of the State. Over four hundred more plaintiffs represented by the same attorney stand ready to sue the state for this pattern of abuse. But the Michigan Department of Corrections and the Michigan Attorney General have refused to settle these cases, despite the state trial judge's urging the state to make a settlement offer and avoid "significant future expense.?

As Michigan's chief executive, Granholm likely has the power to end this litigation immediately with an executive order. But Granholm has been studiously silent about the litigation, despite its likely costing her state hundreds of millions of dollars. It is not that Granholm has ignored the costs of the prison system: She has, for instance, suggested that the state release female inmates to reduce prison costs. But calling for money to be paid to prisoners who have been raped and assaulted by state employees would apparently be too controversial for Michigan's governor.

Granholm's silence on the abuse of Michigan's prisoners is reminiscent of her refusal to stop the State Attorney General's defense of MDOC's egregious policy banning visits by prisoners' close family members as well as all visitation rights for prisoners who incurred two substance abuse tickets. This policy was struck down by a federal district judge in an order upheld by the Sixth Circuit, but the SCOTUS reversed on the theory that the plaintiffs subject to the policy should bring as-applied instead of facial challenges. Again, Granholm could have settled the case by rescinding the policy and conceding its illegality: The no-visitation rule was issued by Governor Engler's administration, so the political courage necessary to end the defense of Michigan's absurd penal system was minimal. But Granholm, again, refused to stick her neck out for the cause of prisoner?s rights that could only render her unpopular with people who have the right to vote.

Granholm, in short, seems like precisely the wrong sort of politician to promote to a bench dedicated, at least in part, to the protection of the powerless. So why did she make the short list? The obvious reasons are (1) to reward her helping Obama win Michigan against McCain and (2) to get her out of the way so that Lieutenant Governor Bob Cherry can succeed her as governor and run as an incumbent in the upcoming gubernatorial race.

Herein lies a lesson: Encouraging Presidents to nominate big-hearted politicians to the bench is a fool?s game. Presidents are only too willing to nominate political hacks to prestigious positions that play a negligible role in their policy agenda. To encourage such a habit is like encouraging an alcoholic to drink red wine for its medicinal benefits. The risks dwarf the rewards: You will not get Earl Warren (assuming that this would be a good thing): You?ll get someone like Granholm ? a mediocrity term-limited out of a job with a chit to cash in for favors rendered.

In general, I think that the case for nominating a politician to the Court is weak. The Court?s business is, for the most part, a dull business to non-lawyers ? parsing ERISA precedents, monitoring the minutiae of criminal and civil procedure, figuring out what it means to ?use? a firearm under 18 U.S.C. section 924, etc. The notion that a politician ?with real-world experience? (the phrase typically deployed by defenders of the Politico Theory of judicial appointments) will have any comparative advantage over an experienced lawyer or judge strikes me as fanciful. No one suggests that the Federal Reserve Board needs a big-hearted politician to liven up debates about monetary policy. Why would anyone believe that debates about ERISA preemption or habeas procedure would be improved by adding a politico to the Court's conference?

So don?t be an enabler: Next time someone urges the President to nominate someone with political experience, ask them to name justices with such experience who have won a good reputation after donning the robe. Typically, defenders of the ?pick-a-politico? can name four distinguished politicos-turned-jurists (John Marshall, Charles Evans Hughes, Earl Warren, and Hugo Black). Against these four, balance blanks like Anthony Wayne and L.Q.C. Lamar. Then consider the track record of the nerds (e.g., scholars or judges) like Story, Holmes, Cardozo, Brandeis, Scalia, Joseph Bradley, Samuel Miller, or Harlan the Younger. If you still favor the pols over the nerds because you think that Obama will beat the odds and pick a latter-day Marshall, then you need to take a course in probability. The odds of a Granholm over a Marshall-Hughes-Warren-Black make the Politico Theory a bet for chumps.