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Thinking Outside the Box
How About a Veteran for SCOTUS?

Former TAI people have gone on to all sorts of places—from the hallowed ranks of the U.S. Army to the opinion pages of the nation’s leading newspapers. Or in at least one case, both: former Walter Mead research associate and current soldier Sam Ayres has coauthored (with Dan Driscoll) a smart piece in the LA Times:

Some of the Supreme Court’s most influential justices were molded by their experiences on the battlefield. A young John Marshall shepherded a company of starving soldiers through the winter at Valley Forge. Oliver Wendell Holmes survived being shot in the chest at Ball’s Bluff, in the neck at Antietam and in the foot at Chancellorsville. Although America’s involvement in the First World War spanned only a year and a half, seven future justices celebrated armistice in uniform. And a handful of future tenants of the high court served in the Second World War — including John Marshall Harlan II, who earned the Legion of Merit.

From there the trail went cold: No veterans of Korea, Vietnam or the Gulf War have joined the Supreme Court. John Paul Stevens, who retired in 2010, was the last justice to have served in war. The closest any of the current members come is Justice Samuel A. Alito Jr., who drilled in ROTC at Princeton and then entered the reserves.

Given that we are now nearly 15 years into the war on terror, the absence of a wartime veteran is all the more inexcusable. In this way, the least democratic branch has become even less representative, and mirrors the ever-yawning gap between the military and elite civilian institutions.

As the authors point out, the problem has its roots, as so many other modern problems do, in over-specialization:

Aspirants to the Supreme Court are now channeled through a highly curated pipeline: They move from an elite law school to a prestigious clerkship to a stint on a federal appeals court. Lawyers step onto this conveyor belt with diverse ethnic and religious backgrounds, and they bring to it diametric ideologies. But they arrive at the court with the same narrow band of adult experiences. Future justices spend all, or nearly all, of their career in the judiciary — or in its immediate orbit as legal academics or solicitors before the court.

Specialization has its value in resolving technical points. But it also leads the high court to issue decisions whose logic appears unnecessarily arcane. This trend bothers liberals and conservatives alike.[..] Experience outside the judiciary would help correct this problem. As constitutional scholar Akhil Amar has argued, the court “would benefit from having at least one or two justices” who were prior Cabinet officials or legislators and have “seen up close how presidents actually think … how bills in fact move through Congress.” The court would likewise benefit from adding a soldier.

[…And] a veteran in the chambers would at the very least have experiences to share that would make “clear what legal briefs often obscure: the impact of legal rules on human lives.” This is how Justice Sandra Day O’Connor described the effect of the stories Justice Thurgood Marshall shared with her about his previous life battling Klan intimidation.

Ayres and Driscoll cite in particular Brig. Gen. Mark S. Martins, a JAG officer and former infantryman who has spent the last five years reforming and overseeing the Gitmo trial process, as a possible outside-the-box pick.

Whether its Martins, another serving officer, or just a veteran who now sits on the bench, nominating a veteran would be a way of closing the gap between the military and government officials that increasingly plagues all three branches: none of the remaining 2016 candidates have ever been in uniform, while fewer and fewer veterans serve in Congress (though some of the rising stars on both sides of the aisle—perhaps not coincidentally—have.) And in a time when many in D.C. are searching for outside-the-box solutions and ways to get the country back on track, this one is surely worth considering. We strongly recommend you read the whole thing.

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  • Fat_Man

    Another interest group heard from.

    I care not a whit about the interest group membership of a potential justice. I care only about his adherence to the constitution and the rule of law.

    • GS

      Good, but the said Justice would have to be well-versed in the law to be able to adhere to it. And at the present state of law it calls for a professional jurist of high caliber and much experience.

  • GS

    While these kind of experiences might, and would, be useful, they would have to be in addition to a pretty serious background in judiciary. As an extreme illustration, imagine a citizen Justice without such background: for years and years, while learning the ropes on the job, such Justice would be a parrot and a rubber stamp at the mercy of his [professionally trained] clerks. In the terms of getting some military experience, the best one could hope for nowadays would be getting someone from the JAG branch.

  • Pete

    Not a bad idea.

  • FriendlyGoat

    I think one or more veterans would be a fine idea. With respect to that qualification, I would actually prefer someone who served but was not a military careerist. One certainly does not have to have been a general officer to understand the experiences of armed service. In fact, people who spent more time taking orders than giving them might make better judge material.

    Meanwhile, we can be absolutely certain that a Republican president next year (if that’s how it goes) will not be “guessing” as to a candidate’s “judicial temperament”. Such a nominee will be “litmus-tested” PRIMARILY on his/her beliefs about the rights of corporations being somehow “equal” to those of citizens including under the Bill of Rights. Then, the nominee will be pre-disposed against unions, probably in favor of law enforcement personnel, pro-2A, cool to any kinds of claims of discrimination by actual people, and eager to let male-dominated state legislatures run wild. (A GOP nominee would likely be vetted for his/her tendency to NOT overturn Roe, but that would be secret)

    So, Obama should be nominating pretty-much the opposite of all that and probably will be.

    • Jim__L

      Do you really expect a nominee of the Clinton Corporate Donation Machine to be significantly harder on corporations? You’re dreaming.

      • FriendlyGoat

        I’d take my chances on that compared to Trump, Cruz or Rubio in the appointing chair.

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