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Shaw Advocates Less Divisive Supreme Court Nomination Process

By Allison Hight, 1L
March 24, 2016

“You were all absolutely prescient in asking me to come today, this being the morning of the nomination of the replacement of Justice Scalia,” Theodore Shaw​​ told his audience at Michigan Law on March 16, beginning his talk on race, elections, and the Supreme Court with a laugh. “Let me start by saying that over the years, I have been a witness to a number of memorable court nominations, vacancies, and battles.”

Shaw, a former Michigan Law faculty member, has testified at the nomination hearings of Justices Samuel Alito Jr. and Sonia Sotomayor, and submitted written testimony at Chief Justice John G. Roberts Jr.’s hearing. While on the Michigan faculty, he was instrumental in designing the admissions program that the Supreme Court upheld in Grutter v. Bollinger in 2003. He is now the director of the Center for Civil Rights at the University of North Carolina School of Law.

From his lengthy legal career and his involvement in past Supreme Court nominations, Shaw sees Ronald Reagan’s 1987 nomination of Robert Bork as a crucial turning point in the nomination process. “Prior to the Bork nomination,” he explained, “for the most part, if you were qualified with respect to your intellectual pedigree, even if you were of ideological bent that was different than most of the people in the Senate at the given time, you would be confirmed.” Bork, however, was widely criticized by women’s and civil rights groups for his stances on abortion and right to privacy, and ultimately was rejected for the position.

Theodore Shaw“It’s Bork that people think about as the beginning of the modern era of contentiousness with respect to Supreme Court nominations,” Shaw continued. “He changed the dynamic so it was no longer about whether you had a personal scandal, but it became in part about the ideological leanings.”

Shaw voiced his thoughts about the passing of former Justice Antonin Scalia and the newly announced nomination of Merrick Garland. “For those of us who are progressive in our jurisprudence, we have been waiting for some time for a change on the Supreme Court,” he said. “Scalia’s jurisprudence was, from my perspective, an ugly one when it comes to race.”

Shaw told the audience that after Garland’s nomination was announced, one of his friends called to discuss his disappointment that President Obama had not nominated an African American candidate. Shaw, however, was unsurprised by the president’s choice of Garland. “He’s centrist, moderate, he’s no Scalia. In fact, I think he’s not [Justice Anthony] Kennedy. Is he going to be Sotomayor or Brennan or Marshall? No.” Some of the best judges he has worked with, though, are centrist but open-minded, he said. “There’s a difference between ideologues and people who are intellectually conservative,” he explained. “And Garland? I can live with him.”

However, Shaw expressed disappointment with how Supreme Court nominations have progressed in the past several decades. “Most of the nomination processes have become so bitterly divisive that people are talking at each other, or past each other. If you want to be a Supreme Court nominee today, you want to have a kind of ghostly record. You don’t want to say a whole lot, write a whole lot that’s controversial.”

He urged the students in the audience to reject this standard. “Do not be afraid of taking on controversial causes or clients,” he advised this audience. If you chart your course as a lawyer with a view toward getting to the Supreme Court by never taking a controversial position, given the odds of being nominated and confirmed, your chances of getting there will not be significantly improved, and your life as a lawyer will have passed you by. I would prefer,” he proposed, “if people practiced law at a level of professionalism and excellence that allowed them to represent all kinds of clients, and because they were excellent lawyers, some of them would rise to the level where they would be appointed to the court.”

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