Ability and personality must outweigh politics when selecting justices, says former law clerk for Chief Justice William H. Rehnquist

The retirement of Sandra Day O’Connor from the Supreme Court will probably be the first of many changes in the makeup of the U.S. Supreme Court. “These changes would undoubtedly have an impact on how the Court decides its cases,” says Neil Richards, former law clerk for Chief Justice William H. Rehnquist and associate professor of law at Washington University in St. Louis. “In choosing future justices, I think that it’s important to focus not just on the outcomes of cases, but on how the Court does its business more broadly.”

“Justice Sandra Day O’Connor, for example, is frequently the deciding vote in close cases. If she is replaced by a more conservative jurist along the lines of another Justice Scalia, I think that you might see a more conservative trend on the Court in cases involving such areas as criminal procedure, abortion, and even federalism.

“By contrast, if one of the more conservative justices were to retire and were replaced by another conservative, you might see very little change in the Court’s jurisprudence. This is the conventional wisdom, and it’s hard to disagree with it on these terms.”

Richards notes that this analysis is subject to two very important caveats that are often overlooked in public discussion.

“First, labels like “conservative” and “liberal,” when applied to the jurisprudence of complex individuals like judges are usually an oversimplification of nuanced and perhaps idiosyncratic views,” he says.

“Justices are complicated people, and often don’t hew to a ‘party line.’ This means that the use of any ‘litmus tests’ like abortion or civil rights, even to established appellate judges, can tend to overemphasize one area of jurisprudence at the expense of others.”

Richards also says that it can be very difficult to predict the evolution of the jurisprudence of thoughtful and intelligent people over time.

“Second, I think virtually all of the commentary on judicial selection overlooks personal qualities at the expense of Machiavellian politics,” he says.

“For example, the current chief justice is almost universally admired by Court-watchers of a wide spectrum of political views because he is a good administrator, gets along with his colleagues, and does not abuse the agenda-setting privileges of his office. Not all Chief Justices, such as his predecessor Warren Burger, could have this said about them.”

With potential nominees to replace O’Connor still an unknown factor, Richards hopes that some attention is paid to the ability of any nominee to get along with their colleagues, get the work done, and make sure that the Supreme Court continues to enjoy the prestige that it has earned.

“Outcomes and intellect certainly matter, but so too do judiciousness, wisdom, and collegiality,” he says.

“There are many people smart enough to be a justice, but significantly fewer with the personal qualities – the dignity and, dare I say, judgment to do the job properly. And unfortunately, judicial selection politics tend to neglect this essential job qualification.”

Richards is available for interviews on the impact of retirements on the Court and future Supreme Court appointments.

He discusses these arguments in greater detail in “The Supreme Court Justice and ‘Boring Cases,'” a short article published inThe Green Bag” in 2001, and available online at: http://www.greenbag.org/Richards Boring Cases.pdf.