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Return Balance to the Federal Judiciary

Miller-McCune's experts offer solutions to problems that were under-discussed during the presidential campaign.

Dear President Obama,

You will have the opportunity to nominate many federal judges and no doubt one or more individuals to the U.S. Supreme Court in the next four years. Please restore balance to our federal judiciary.

By balance, I do not refer to partisanship or ideology but to life experience and public stature. In their efforts to predict how nominees will behave on the bench, recent presidents have increasingly appointed individuals to the Supreme Court with narrow legal, academic or appellate judicial backgrounds. All nine current justices were educated at elite law schools and spent their entire adult lives as appellate lawyers, law professors or judges. Not one has had any experience as an elected official, held a major cabinet-level position in the executive branch (Clarence Thomas, a former head of the Equal Employment Opportunity Commission, comes closest) or done significant non-law-related work in the private sector.

The Supreme Court is a governing institution, not just a legal body. To be sure, academic or appellate lawyers can make great justices, and other forms of political experience do not necessarily lead to greatness on the Court. (Former President William Howard Taft was mediocre as a chief justice; Oliver Wendell Holmes was a giant.) But most of our best justices, from John Marshall (a former member of the House of Representatives and secretary of state) through Earl Warren (a former governor of California and presidential candidate), brought to the Court more than just legal acumen and appellate skill. They had served their country in elective offices or in other significant positions of public trust and authority. That experience helped them understand the impact of law in the everyday lives of people, to see law not as an autonomous science but as a set of practices deeply connected to a nation's political and social life.

That perspective — that sense of the judiciary as a governing institution, not just a setting for academic exercises in abstract legal reasoning — is sorely needed on the Court today. When it comes time to pick the next Supreme Court justice, please do not limit your thinking to academic lawyers or lower court judges; think of individuals such as Massachusetts Gov. Deval Patrick, former Housing and Urban Development Secretary Andrew Cuomo or U.S. Sen. Hillary Clinton, who are lawyers but have led distinguished lives outside the legal system, too.

More Unsolicited Advice ...

Re-establish Respect for the Constitutional Separation of Powers
Mickey Edwards, Princeton University: Despite repeated assertions by both Barack Obama and John McCain that their policies would differ significantly from those of the previous administration, virtually no attention was paid during the campaign to the worst feature of the Bush presidency: the determined undermining of America's constitutional framework. Read more

Restore Public Faith in Science
Sunshine Menezes, Ph.D., University of Rhode Island: Before the tumbling economy sucked the air out of other issues in the 2008 presidential campaign, there was laudable effort to bring attention to a largely overlooked but critical policy issue: the decline of American science funding and education. Read more

Eliminate the Electoral College
Len Sellers, CEO, Hammer2Anvil: I was at a business dinner in Asia shortly after the 2000 election. Jokes were being made about still not knowing who will be the next U.S. president: "Isn't it typical of Americans to bring in the lawyers?" And so on. Read more

Close the Turkey Farm
Thomas A. Birkland, Ph.D., North Carolina State University: The president should remove FEMA from Homeland Security. Minimally, he could issue an executive order that indicates that the FEMA director reports directly to the president during disasters. Read more

Grant All Americans Their Day in Court
James L. Gibson, Ph.D. Washington University in St. Louis: One issue I believe your administration ought to address is that of access to justice by ordinary citizens. As you are no doubt aware by virtue of your legal training, the American legal system has been radically reshaped during the Republican years under so-called tort reform. Read more

P. People O.
Bill Savage, Ph.D., Northwestern University: Piss people off. Piss off the right-wing Cuban Americans in Florida by normalizing relations with Cuba. (If we can work with the commies in Vietnam or China, then we can work with the Cubans.) Piss off the agribusiness industry by ending subsidies for farms not owned and worked by individual families. Read more

Pay More Attention to Our Own Backyard
Douglas Massey, Ph.D., Princeton University: A clear lesson of the last eight years is that the world is now too large and complex to be dominated by a single power. Nations that try to exercise unilateral economic and military power will only undermine their moral and material position in the world and contribute to their own decline. Read more

Find a New Immigration Perspective
James La Valle, Ph.D., Murray State University: Conspicuously absent from both 2008 presidential campaigns was a fair, honest and decisive proposal to solve the immigration problem in the U.S., especially with respect to our southern border. Read more

Make Real Racial Progress
Phillip Atiba Goff, Ph.D., University of California, Los Angeles: There are few places where the United States is further away from achieving "post-raciality" than in our prisons and courtrooms. ... It is distressing to think that this election's celebration of moral progress could coincide with the largest incarceration of a people in the history of the world, with recent reports estimating that as many as 1 in 9 black males between the ages of 18 and 34 are held in penitentiaries. Read more

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