By Stanley Kutler
Barack Obama’s forthcoming Supreme Court nomination has unleashed the familiar flood of commentary, much of it revolving around the political context, and hence much of it irrelevant, wrongheaded guesswork. A court vacancy triggers a select list of probable appointments, which usually grows when media pundits “hear” of a new name, often leaked to test the waters.
Talk invariably centers on a candidate’s prior judicial experience, which, in recent decades, has become an inescapable qualification. Undoubtedly, polls would find that most Americans believe this is a constitutional requirement. Despite the Supreme Court’s current roster of all former appellate judges, judicial experience never has been a requirement. We have had great judges without prior experience on the bench, beginning with four of the six original justices; then there’s the great Chief Justice John Marshall. Two of the last four chief justices, William Rehnquist and Earl Warren, had no such experience. That balance has been there throughout the court’s history. There have been some good, some bad justices with judicial experience; some good, some bad without it. For good measure, the Constitution does not require federal judges to be lawyers.
President Barack Obama should consider a variety of other qualifications to start to alter the court’s present imbalances. First, he might begin with a nominee who brings to the court a history of political involvement and engagement on important issues. Judges are not neutral umpires, despite then-nominee John Roberts’ noble sentiment, an obvious ploy to help his confirmation. The president also might consider geographical diversity. There is life west of the East Coast, along with outstanding law schools. Apparently Obama and his predecessors have wittingly or unwittingly created an imbalance in religious affiliations, as the court now has six Catholics and two Jews. If we are to have identity politics determine the nominee, what about an Asian-American? Or, the president can be bold and nominate a male WASP, or would that be off the charts and out of the mainstream?
Several potential nominees (according to news reports) have had significant political and real-life experiences. Homeland Security Secretary Janet Napolitano comes readily to mind; obviously, she is a person of enormous stature and accomplishments, both in background and apparently in her present position. Balance? If confirmed, she also might balance the right-wing views of the court’s other two Italian-Americans. Alas! One misspoken sentence in the frenetic atmosphere surrounding a failed al-Qaida bomber last Christmas probably will have the Republicans chanting in unison that she is out of the mainstream.
Sen. Amy Kloubachar (D-Minn.) has been mentioned. Her nomination would revive memories of Franklin D. Roosevelt’s revenge on the Congress that scuttled his Supreme Court reorganization bill in 1937. Shortly thereafter, FDR had his first chance to reshape the court, and he began with the nomination of the Senate’s most radical and supposedly disliked member, Hugo Black, who had once briefly served as a night police court judge in Birmingham, Ala. The Senate does not devour its own, and after the revelation of Black’s membership in the Ku Klux Klan in his younger political days (perhaps a not-so-unexpected political experience in Alabama), he was confirmed.
Richard Cordray, currently Ohio’s attorney general, has not been part of the current buzz. But he should be, especially if Obama wants to be bold and yet tap into the “mainstream,” which, of course, is in the eyes of the beholder. Let us hope that the president does not travel the same “mainstream” that Sen. Jeff Sessions (R-Ala.) sails. Sessions, of course, is the Judicial Committee’s minority leader, whose own appearance before the panel as a judicial nominee ended in failure.
Cordray has a résumé befitting Horatio Alger. He was born and still lives in Grove City, Ohio, having graduated from high school there as valedictorian in 1977. He attended James Madison College at Michigan State, where he graduated summa cum laude. He then attended Oxford as a Marshall Scholar, and earned an MA with first-class honors in economics, as well as a Varsity “Blue” for basketball. He gained his law degree with honors at the University of Chicago in 1986, and served as editor in chief of the law review. He made the desirable rite of passage as clerk to Supreme Court Justices Byron White and then Anthony Kennedy. An entree to Kennedy might be valuable currency these days.
Cordray became Ohio attorney general in 2008, capturing 57 percent of the vote, a few points ahead of presidential candidate Obama’s winning number. Cordray recently announced he would not join the band of fellow attorneys general challenging the new national health care law. Cordray rejected their arguments that the commerce clause and the 10th Amendment of the Constitution rendered the law unconstitutional. Unlike the attorney general in secession-minded Texas, for example, Cordray forthrightly asserted that the federal government is right, not the states. Fighting the new law, he maintained, is merely a waste of state taxpayer money. Clearly, Cordray knows his Constitution and its history, which is refreshing these days.
For the larger issue of misconduct and criminality in our financial sector, Cordray has the makings of a “populist,” in the traditional meaning of the label. A recent Business Week feature characterized Cordray as a “choir boy” with the audacity to battle Wall Street, which has reportedly come to regard him as another Eliot Spitzer. Imagine that: like Spitzer with no baggage.
Cordray has sued Merrill Lynch for misleading investors and AIG for accounting fraud, winning settlements of $475 million and $115 million, respectively. At the moment, he is the lead plaintiff in a suit against Bank of America, alleging it withheld bad news just prior to its acquisition of Merrill Lynch in 2009. He also has challenged the bond-rating agencies (Standard & Poor’s, Moody’s Investors, and Fitch Ratings), charging that they deliberately gave AAA ratings to junk debt to gain additional fees.
In 1993, Cordray was appointed as the state’s first solicitor, and he was responsible for state cases before the Ohio Supreme Court and federal appellate courts. He argued a number of times before the U.S. Supreme Court, most notably in Hanlon v. Berger (1999), involving the constitutionality of media “ride-alongs” with police.
For the friends of popular culture, no résumé of Cordray would be complete without recognizing that he was an five-time champion on television’s “Jeopardy,” winning more than $45,000. He apparently used his winnings to repay his law school debts, buy a used car and pay his taxes.
One thing Cordray is not is an appellate judge; moreover, he holds other credentials that should make him—or someone similar—attractive to the president and give the Court and the country a refreshingly different kind of judge. Cordray is a smart and capable lawyer with Supreme Court experience, perhaps the ear of its swing justice, and an eagerness to take on Wall Street. He has proven himself knowledgeable about the history of our constitutional law, not the ideological pretense and folly that is peddled through the media. On health care reform and financial regulation—the two issues that top Obama’s list of priorities and that could be threatened by the high court—Cordray is a proven ally of the president.
Cordray cannot be unknown to Obama. When Obama appeared in Columbus, Ohio, on Oct. 13, 2008, Cordray introduced the candidate on a platform draped in the familiar slogan, “Change We Can Believe In.” The candidate, now president, might remember Cordray as just the kind of change folks had in mind.
Stanley Kutler is the author of “Judicial Power and Reconstruction” and other writings.
White House / Pete Souza