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Supreme Court needs more justices with legislative experience

Legislative experience allows the jurist to bring different perspectives on how statutes are conceived, drafted, negotiated, and adopted as an aid to interpreting them.

Marshall H. Tanick

The widely approved appointment by Gov. Dayton of DFL legislative leader Paul Thissen to a fill a vacancy on the state Supreme Court points up a glaring deficiency at the U.S. Supreme Court level.

While Thissen, now the only person on the state’s highest tribunal to have held elective office, duly noted that, as a judge, his decisions are to be guided by “principled interpretation of the law,” rather than based politics or “policymaking,” it is inevitable that nonjudicial considerations come into play in the decision-making process, particularly in cases raising complex social issues.

He’s the first elected official to take a seat on the state Supreme Court bench in more than 20 years, although a number of jurists on the lower courts in the state, including trial and appellate ones, have had legislative experience, as have had two of the past five Supreme Court chief justices — Sandy Keith, a DFL stalwart who served in the executive branch as lieutenant governor after a stint in the state Senate from Rochester, and Kathleen Blatz, a former Republican legislator and later Hennepin County District Court judge from Bloomington.

Different perspectives

It is beneficial to have at least one member of the seven justices on that tribunal to have been immersed in the legislative process. This allows the jurist to bring different perspectives on how statutes are conceived, drafted, negotiated, and adopted as an aid to interpreting them.

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This is not to suggest that all, most, or even many jurists should come from an elective background, but it does underscore the deleterious vacuum of such experience in the past.

This gap of elective experience is even more pronounced at the U.S. Supreme Court. None of the current nine justices on the high court has held elective public positions. Some of the more notable jurists on the Supreme Court in the past have come from legislative backgrounds, such as New Deal Sen. Hugo Black of Alabama, whom President Franklin D. Roosevelt appointed to the Supreme Court near the end of the Depression in the 1930s; he served there into the Nixon administration in the 1970s.

Most recent: Sandra Day O’Connor

The most recent one was Sandra Day O’Connor, a former Arizona state legislator (and state appellate court judge), who was the first woman appointed to the high court by President Ronald Reagan in 1981; she served on it for 25 years. O’Connor drew upon her familiarity with the legislative process in a number of the decisions she authored and also played a conciliatory role, perhaps using her political skills, in moderating some extreme viewpoints of her colleagues on the bench.

Apart from her, the only other Supreme Court appointee who has held a significant political position in the past 50 years was David Souter, appointed by President George H. W. Bush in 1990 and serving for nearly two decades. He had a stint as attorney general in New Hampshire, but that was an appointive position, not elective.

The paucity of elective experience on the country’s highest tribunal is reminiscent of the remark by long-time speaker of the House of Representatives from Texas, who when told by his protégé of the brilliance of some of President John F. Kennedy’s appointees, groused that “everything you say may be true, but I’d feel a whole lot better if one of them had ever run for sheriff.”

The elected political authorities in the nation’s capital, including the president and confirmatory members of the Senate, should keep the Minnesota model in mind when future vacancies arise on the Supreme Court.

Marshall H. Tanick is a Twin Cities constitutional law attorney.


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