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I'm guessing the answer is nothing out of the ordinary, because I've heard talk of former governors being proposed as supreme court justices, but I've found some of the things I've heard on Brett Kavanaugh disturbing. His prosecution of Bill Clinton and his ties with George Bush and ties with the republican party.

The question is two parts. Is it common for a supreme court selection to have strong ties to a political party? I don't remember anyone like this being a pick for the supreme court during my lifetime.

And are there any written/legal or unwritten reasons or historical precedent on why a person with a political past should not be voted onto the Supreme Court?

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    No, the Justices just need to have the right prejudices. – Keith McClary Jul 16 '18 at 4:53
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Is it common for a supreme court selection to have strong ties to a political party? I don't remember anyone like this being a pick for the supreme court during my lifetime.

Yes. All Supreme Court nominees are politically connected. Some of the more obvious examples:

  • Neil Gorsuch: mother was the Environmental Protection Agency (EPA) director under Ronald Reagan; member of the George W. Bush administration.
  • Merrick Garland: former prosecutor; member of the Jimmy Carter and Bill Clinton administrations.
  • Elena Kagan: served in the Bill Clinton and Barack Obama administrations; no judicial experience.
  • Sonia Sotomayor: former prosecutor.
  • Samuel Alito: former prosecutor.
  • John Roberts: member of the George H. W. Bush administration.
  • Stephen Breyer: former prosecutor; served on the Watergate commission and for the Senate Committee on the judiciary.
  • Clarence Thomas: worked in the Ronald Reagan administration.
  • David Souter: former prosecutor and personal friend of Senator Warren Rudman.
  • Anthony Kennedy: helped California governor Ronald Reagan draft a tax proposal.
  • Robert Bork: member of the Richard Nixon and Gerald Ford administrations.
  • Antonin Scalia: member of the Richard Nixon and Gerald Ford administrations.
  • Sandra Day O'Connor: former prosecutor, state legislator, and elected judge.
  • John Paul Stevens: worked for the House of Representatives Judiciary committee and was a special prosecutor.
  • William Rehnquist: member of the Richard Nixon administration.
  • Warren Burger: delegate to the 1952 Republican convention; member of the Dwight Eisenhower administration.
  • Thurgood Marshall: member of the Lyndon B. Johnson administration.
  • Abe Fortas: member of the Franklin D. Roosevelt and Harry Truman administrations; personal friend of Lyndon B. Johnson.
  • Byron White: member of the John F. Kennedy presidential campaign and the administration.
  • Arthur Goldberg: member of the John F. Kennedy administration.

The issue with prosecutors is both that they are part of the government and that they are frequent litigants for the government. It is not unreasonable to think that they may favor "their" side when it appears before the court. This may be unfair to Sotomayor, although it's worth noting that most of her work involved child victims.

This is not to say that Ruth Bader Ginsburg, Lewis Powell, Jr., Harry Blackmun, et. al. were not also politically connected. It's just to say that their political connections were not expressed by being part of the government outside the judiciary and the military.

Considering that I can only find three examples from 1961 on that might be considered not to have government experience, I have to say that it is in fact common.

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    President Taft made six appointments to the Supreme Court in his 4-year term; eight years after he left office, he was appointed Chief Justice of the Supreme Court... – DJohnM Jul 15 '18 at 3:25
  • It may have been a bad question on my part, or poorly worded. I was looking more for partisanship vs opinion. I don't like Neil Gorsuch for example and I almost never agree with him, but he is who he is. He's consistent, Elena Kagen is consistent too. Brett Kavanaugh seems to have taken offense against Bill Clinton's sex with an intern, but doesn't care about Trumps. That's inconsistent. He's basically saying, it's OK when my guy does it, not OK when their guy does it. That's much more rare for a supreme court justice pick and imho, not judicial. – userLTK Jul 16 '18 at 1:36
  • I'm surprised you didn't mention Earl Warren, who was the governor of California at the time he was appointed Chief Justice. – cpast Jul 16 '18 at 4:05
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    @userLTK are you taking Kavanaugh's work as Associate Counsel in the Office of the Independent Counsel as some kind of personal vendetta? The Starr investigation was official government business, not some random voluntary act of political opinion. – Deolater Jul 16 '18 at 12:06
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    @userLTK It's also worth noting that his conclusion that he drew from his participation in the Clinton investigation was that such investigations were harmful. His views may not be hypocritical. They may have changed. I.e. if you asked him now, he might say that he was wrong to ask those questions of Clinton then, which is why it is also wrong to ask Trump now. And this evolution in his views seems to have happened some time ago, as his opposition to special counsels dates back to 1998 (PDF). – Brythan Jul 16 '18 at 16:37
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Is it common for a supreme court selection to have strong ties to a political party? I don't remember anyone like this being a pick for the supreme court during my lifetime.

And are there any written/legal or unwritten reasons or historical precedent on why a person with a political past should not be voted onto the Supreme Court?

Strong political connections and support are pretty much pre-requisite to any appointment to the federal judiciary. At least 95% of federal judges have strong political ties. This is a long standing reality dating back to before the 1800s.

This is a natural and expected consequence of the fact that federal judges are appointed by elected officials and confirmed by elected officials.

Arguably, it is a feature and not a bug.

While courts in many countries rule only on questions of private law (i.e. disputed between private citizens) and criminal law (in which the state intervenes in a dispute between private citizens), U.S. courts, and especially the federal courts in the U.S., have always had broad public law (i.e. disputes between the government and individuals or other governments) jurisdiction. Again, this is something that dates, at least, to the early 1800s.

Judges with political connections and supporters are more capable of fully understanding what is at stake in public law disputes and handling them adroitly.

Judges still need to be able to rule impartially in accordance with principles of law, rather than purely out of personal partisan beliefs, so the political aspects of a judge's judicial philosophy and a capacity to be impartial still matters. But, merely being politically connected is a job requirement, not a disqualification.

This doesn't mean that Democrats and moderate Republicans aren't justified in opposing him because his history clearly demonstrates that his views are out of the mainstream and that he may have great difficulty being impartial. But, it is what his past says about the kind of person and kind of judge he is that matters, not the mere fact that he has political connections.

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  • The explanation kinda makes sense and it is hard to disagree intuitively or logically, but still, I would have preferred to see some sort of references (maybe to political philosophers or noted jurists) to back up "more a feature than a bug" assertion. The latter would turn it from just OK to a great answer. – user4012 Jul 15 '18 at 13:06

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