Quarterbacks and Justices
posted by Gerard Magliocca
In December, Malcolm Gladwell wrote a piece in The New Yorker about how difficult it is for NFL scouts to figure out which college quarterbacks will do well in the pros. The success rate of these predictions is poor even though there is plenty of information available on draft prospects — game tape, interviews, physical tests, and so on. Why is this the case? Partly because the NFL is so much more challenging than college football. And partly because the skills that make someone a great NFL quarterback are intangible and thus cannot be easily measured. Few thought that Tom Brady would be a star when he was drafted. Everyone thought Matt Leinhart would be a star when he was drafted. How is that working out?
A similar dynamic applies to evaluating potential Supreme Court Justices. One thing that I find astonishing about the debate on the candidates for Justice Souter’s seat is how sure some people are that they know who will be a “liberal Scalia” and who will not. Indeed, much of the media coverage implies that the President’s choice comes down to picking a transformative nominee or “playing it safe” and taking someone who just fills some demographic slot. This analysis rests on several false assumptions.
First, the track record of estimating how previous nominees would do is not encouraging. Justice Frankfurter was one of the leading constitutional lawyers of his day and was expected to wield a lot of influence on the Court. That did not pan out. A generation later, Abe Fortas came to the Court with similar expectations and was a flop, though he had his own special problems. Meanwhile, William Brennan, who is now held up as a paradigmatic example of an influential Justice, was not well known when he was chosen for purely demographic reasons — to fill a “Catholic seat” and help Eisenhower’s reelection. Indeed, Brennan’s nomination was mostly greeted with “William Who?” when he was picked. Are we better at assessing candidates now? I doubt it.
Second, influence within the Court is mostly a function of seniority rather than ability. Consider John Paul Stevens. Ten years ago, he was widely viewed as rather bad at persuading his colleagues. Indeed, he was mostly known for writing quirky separate opinions. Now he is often described as the leader of the liberal bloc. What changed? Well, now he’s the senior Associate Justice and has the power to assign opinions in many cases. Plus, as the most senior person he can exert the kind of personal influence that your grandfather might have on you. None of this has anything to do with his intelligence or writing skill. It’s no different than saying, “What makes a Senator influential?” Generally, the answer there is also seniority, not ability. (Just ask Arlen Specter.)
One might respond by saying, “But if someone is a tremendous writer, then they will wield influence by persuading lawyers and citizens across the country.” True, but how many people are that good? Ask yourself how many of the Justices (living or dead) you enjoy reading? I’ll bet it’s no more than ten and might be no more than five. (I’d say Marshall, Holmes, Jackson, Scalia, and Black.) And that’s out of over one hundred Justices. Thus, the search for that sort of person is likely to be futile.
The bottom line — the legal equivalents of Mel Kiper Jr. should be ignored because they don’tt know what they’re talking about. Though an “Obama is on the clock” graphic on cable news would be fun.
May 13, 2009 at 11:17 am
Posted in: Supreme Court, Uncategorized
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Responses (2)
Karl - May 13, 2009 at 11:30 am
If past nominations are any indications, Obama might do well to try to find a candidate he thinks will be conservative jurists and maybe even one that will overturn Roe v. Wade. This seems to have been (until recently perhaps) a sure fire way to ensure the types of justices Obama is sure to favor. (Think Souter, Kennedy, O’Connor, etc.)
Howard Wasserman - May 13, 2009 at 12:24 pm
Within the past few years (maybe around the time of the election or maybe back during the Roberts/Alito confirmations), Jack Balkin wrote that one of the things that happens is that the major issues shift over the course of a justice’s career on the court. So a clearly reliable judicial ally on the issues of the day may not be so when the key issues change. Balkin used Frankfurter as the example–Frankfurter was appointed as a reliable supporter for the New Deal who was likely to uphold federal legislation. And he was and he did. But when the core issues shift 20 years later to civil liberties, Frankfurter was no longer a “liberal” stalwart on those issues.
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