A recent British law has separated the judiciary from Parliament. Britain’s high-ranking judges will no longer be members of the House of Lords, as they have been for centuries. This law springs from the belief that a close association with politics will interfere with a judge’s independent judgment.
This belief is both unfortunate and naïve. Law and politics are by nature connected. The best judges are politicians.
One of the most distinguished jurists in English history was Lord Mansfield, an eighteenth century judge. Lord Mansfield did much to frame our current contract law. His precedents can be found both in Legal Realism and in today’s Uniform Commercial Code. But Lord Mansfield was also a distinguished orator in Parliament.
This principle is also amply demonstrated in American history. Perhaps the greatest American jurist was John Marshall. Soon after becoming the nation’s third Chief Justice, Marshall established judicial review. Yet before President Adams appointed him to his post, Marshall had been U.S. Secretary of State. And before that, he had been a member of Congress.
There are many other examples. Before becoming Chief Justice, Earl Warren was governor of California. And Chief Justice Charles Evans Hughes had been governor of New York, U.S. Secretary of State and the Republican candidate for president in 1916.
It is healthy to poke fun at politics. It is also healthy to engage in it. Political experience is the citizen’s best teacher. It teaches the citizens many aspects of society and human nature.
When the citizen is a judge, political experience enables the judge to see the questions he or she will decide more fully. The question of a judge’s independence is merely one of that individual’s integrity, not of experience.
And on the question of judicial fitness, something should be said on President Obama’s appointment of Elena Kagan to the Supreme Court. Much has been said of Justice Kagan’s lack of judicial experience.
The longstanding insistence on appointing appellate judges has led to a line of many undistinguished jurists. It also flies in the face of history. For some of our best judges, including John Marshall and Louis Brandeis, never sat on a bench before they were appointed to the Supreme Court.
By appointing Elena Kagan, President Obama has made a fresh break from a stale tradition.