summer 2008 Edition
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Robert W. Packwood

appointments of a lifetime:

The Role of the Supreme Court in a Democratic System

With a historic presidential election just months away, The Scene asked former U.S. Senator Robert W. Packwood ’54 about the role of the Supreme Court and the federal courts in our democratic system. Jeffrey C. Dobbins, former law clerk to Senior Associate Justice John Paul Stevens and assistant professor at the College of Law, interviewed the senator.

Dobbins

DOBBINS: Senator, in your floor speech on Justice David Souter’s confirmation, you said there was “no duty of a U.S. Senator more important or deserving of careful consideration than that of a nomination to the Supreme Court.” Do you still agree?

PACKWOOD: Absolutely. You could give the president his sway on cabinet appointments. It was his cabinet, it was his policy. He’d been elected. But on Supreme Court lifetime appointments — people who are going to be there 10, 20, 30 years — they’re going to go way beyond the span of this president and the next president. When it’s lifetime and the Supreme Court, it’s hard to tell which factor weighs more, but the two of them together are colossal.

DOBBINS: What would you tell a voter who came to you and complained about a decision of the U.S. Supreme Court and said, “These are unelected individuals, they have lifetime tenure, they can do whatever they want. It’s completely contrary to the philosophy of a democratic system.”

PACKWOOD: I would say that’s what our founders intended. They did not intend this court to reflect public opinion. They wanted to protect the court from having to reflect public opinion.

DOBBINS: So is the court a democratic entity?

PACKWOOD: I don’t regard the court as a democratic entity, although it’s certainly involved in the democratic process — look at the Florida election cases from 2000. There, they decided the election of a president.

DOBBINS: If the Supreme Court is not itself a democratic entity, how does the system ensure that it doesn’t go off on its own? Every time there is a new nominee, one hears concern that the court has drifted off track.

PACKWOOD: I hear people say that, but by and large, over 200 years, we’ve had a reasonably stable court. You know if the president is a liberal, you’re going to get liberal appointees. If the president is a conservative, you’ll get conservative appointees. But a president might only get a couple of nominees to the court, and that will only seldomly cause the court to reverse itself. What it will do is moder ate the direction the court was going before these appointees came along. So the appointment process is like trying to turn an ocean liner around, not a laser.

DOBBINS: Should we rethink the idea of lifetime appointments to the court?

PACKWOOD: Absolutely not. The bigger this government gets and the more that Congress and the executive do, the more I want to make sure I’ve got a court that is not going to be swayed in any way at all by the feelings of the moment. I just want the justices to have that lifetime feeling. No matter what this government tries to do, I want to make sure that they are making sure it doesn’t step beyond the bounds of what is legal.

DOBBINS: Over the course of your time in the Senate, you cast votes on 16 different Supreme Court nominees. The Constitution provides that the president shall nominate and, by and with the advice and consent of the Senate, shall appoint judges to the Supreme Court. What was your understanding about the Senate’s role in that process?

PACKWOOD: “Consent” means consent. It’s not just the president nominates and you say, “Mr. President, I’m not sure that person is too qualified.” It means more than if the president has presented James Jones to the court, and James Jones has no felony convictions, James Jones had a good practice of law, and James Jones has no record of wife beating, that he automatically, therefore, should be confirmed. I don’t think that’s what that clause means.

DOBBINS: So not just competence, but the philosophy of the nominee matters?

PACKWOOD: Yes. There are a thousand best persons to be on the Supreme Court. There are probably more than a thousand who would be very substantial Supreme Court justices who are competent, but it requires more than competence. I was interested in their philosophy. Even President Nixon said to me that you have to appoint people who support your philosophy. And in that case I thought it was fair for me to at least question what their philosophy is and weigh it against mine, as it was for the president.

For example, in thinking about “original intent,” my hunch is that, as smart as the founders were, the idea of sending information electronically over the airwaves would have been beyond them. So there’s no point in trying to say I’m only going to vote for people who will appear to be [in favor of] the original intent of the founders.

The only thing static in history is change. Gradually the whole history of civil liberties in this country is the expansion of a people who were not covered at the time of its founding. By and large, the founding applied to white males over 21, and the history from that time on was the expansion of it. Were the founders to have thought about that, would they have expanded it? Who knows? How do you know? It’s more a personal decision.

DOBBINS: Would the Supreme Court look different if the House of Representatives had the responsibility for confirmation?

PACKWOOD: Possibly, in a sense. There is a great advantage to the Senate’s six-year terms. You can afford to ride out some rough spots, and you know there are going to be rough spots. The founders weren’t wild about direct democracy, under any circumstances — they really wanted a republic in all its forms. I gather the founders wouldn’t have even envisioned a direct election of senators — it took a constitutional amendment to get to it. So they wanted to isolate the Senate from the fractures of passion and public opinion. And by giving the confirmation process to the Senate, they were deliberately intending to separate the nomination process from passion and public opinion.

At the same time, though, the Senate provides an important connection to the people. When I was in the Senate, when I would come home for two and a half months, I’d cover the state. The senators can talk with the people, and then come back to Washington and sit with the president and say, “Mr. President, you don’t understand what’s going on.” A president just doesn’t have the same opportunity to do that.

DOBBINS: It seems in the end that while individual decisions of the court can seem critically important and draw great attention, the collective value is the stability in the process.

PACKWOOD: Absolutely, and the willingness of the public to accept the stability, even when the court issues decisions they don’t like.