July 2009

Yesterday's revelations about Karl Rove's hand in the firing of U.S. attorneys make clear that the time has come to protect U.S. attorneys, by statute, from at-will discharge. Like other quasi-independent law enforcers - members, for example, of the Federal Trade Commission - they should be subject to discharge only for good cause, such as malfeasance, neglect of office or incapacity. The rule of law depends on the public's confidence in the evenhanded administration of justice. The Bush White House proved that such confidence may well be unwarranted under the current system.

It has long been executive branch folklore that the President is constitutionally entitled to fire U.S. attorneys at will. This is not true. The Supreme Court correctly held in Morrison v. Olson that Congress is entitled to insulate officers of the United States from at-will political discharge unless that insulation would disable the President from executing his own constitutional functions.

As revealed by Morrison v. Olson - and a cursory review of U.S. history - the President has no Article II entitlement to policy control over the federal prosecutorial function. If he did, then Morrison v. Olson, which upheld statutory provisions limiting the President's capacity to fire independent counsel, would have had to come out the other way.

On the first day of her confirmation hearings, Judge Sonia Sotomayor addressed the Senate Judiciary Committee and explained her approach to judging. "In the past month, many senators have asked me about my judicial philosophy," she said. "It is simple: fidelity to the law. The task of a judge is not to make law - it is to apply the law."

It was, as Yogi Berra might have said, déjà vu all over again. John Roberts told the Senate that he was just an umpire calling balls and strikes. Sonia Sotomayor said that she was just applying the law to the facts. Really now; give us a break! Yes, judges should be faithful to the law. Problem is, the law is often unclear-especially in the Supreme Court, which accepts cases only if they pose novel legal issues.

All the justices on the Supreme Court are doing their level best to be faithful to the law, but they reach very different conclusions about what it requires. Isn't that why we watch the Supreme Court confirmation hearings? If judges were just umpires, if their judicial philosophies amounted to nothing more than ‘fidelity to law,' neither we nor the senators would care so much about who was appointed.

So why can't we have a more honest public conversation about what makes for a good Supreme Court justice? That question is the starting point for The Next Justice: Repairing the Supreme Court Appointments Process. Its goal is to provide a better description of what Supreme Court justices actually do and thereby to improve the national argument about who should be selected.