The resignation of Justice John Paul Stevens has given rise to speculation as to his replacement. It has become an almost invariable pattern in the United States to appoint professional bureaucrats (i.e., judges who have toiled in the lower federal courts) to the high court. Some polities, however, have a different practice and appoint judges to their national high courts with a non-judicial background. In Belgium, for example, at least half the judges on the constitutional court must have a minimum of five years experience either in the federal or in a regional parliament. In France, over half the members of the Constitutional Council who have served from the inception of that body to the present have served in parliament. Professors and academics have been appointed to national high courts in Colombia, France, Spain, Italy, and Germany. Civil law countries have largely rejected the idea of exclusively staffing constitutional courts with professional bureaucrats.
I do not think that the American practice of selecting professional bureaucrats as justices has served us well. Judges with non-technical, legal backgrounds have something important to add to the constitutional conversation. The open-ended provisions of the constitution are not like other laws. One need not be a legal realist to understand that the incantation made by nominees to the United States Supreme Court in their appointment hearings before the Senate that they are simply umpires following the law is errant nonsense. Hans Kelsen (no legal realist) very perceptively suggested in an important essay he wrote in 1928 that the “Constitution in employing a term such as justice did not intend that the fate of a law would depend on the pleasure of a collegial body selected in a more or less arbitrary fashion.” For better or for worse, few, if any, constitution writers have followed his advice and made the broad provisions of a constitution purely programmatic. If, however, the open ended provisions of a constitution are to be self-actualizing, their interpretation requires judges with a broader vision than is typically supplied by law school and a career on the bench. It seems unlikely, for example, that justices with a broad, non-technical background would invalidate a hard fought and democratic national health care bill whereas it is, unfortunately, quite possible to imagine our Court from interfering with (and damaging) democracy in this fashion.
–Miguel Schor, Suffolk University Law School
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