The Judicial Bookshelf DONALD GRIER STEPHENSON, JR. I. “The Supreme Court,” insisted Alpheus Thomas Mason and William M. Beaney nearly four decades ago, “has always con sisted largely of politicians, appointed by politicians, confirmed by politicians, all in furtherance of controversial political objec tives. [Since] John Marshall the Court has been the guardian of some particular interest and the promoter of preferred values.”1 This first sentence in the introduction to the sixth edition of the authors’ text and casebook on American constitutional law, however, did not go unchallenged. As Professor Mason explained to the author of this review essay some months after Prentice Hall published the new edition in January 1978, Justice Lewis F. Powell, Jr., had taken issue with the claim, letting the book’s senior author know that the Justice considered himself a judge, not a politician. Justice Powell’s mild admonishment may have said as much about the general public’s regard for politics and politicians as it did about the Justice. Mason and Beaney’s assessment joined the long-running conversation among stu dents of the Court as to whether or to what degree the Supreme Court is or should be a majoritarian or countermajoritarian institu tion, that is, whether the Court should bend with or againstthe tides ofpublic opinion. And in that calculation, certainly the President’s role in appointing Justices must figure prominently. However, to the degree that the opportunities for nominations are sporadic or reduced, so is the opportunity for different faces, interpretative approaches and values to be added to the Bench, a reality compounded by infrequent and irregular vacancies on the High Bench. Within those confines, recent Supreme Court appointments suggest a clear career path in that most recent Presidents have overwhelmingly preferred nominees who are themselves sitting judges or who at least have had experience as a judge, a practice which seems to discount Justice Felix Frankfurter’s unequivocal, if self-approving, assertion over a half-century ago that “the correlation between prior judicial experience and fitness for the Supreme Court is zero,”2 a statement he made as a rejoinder to those who—at a time ofheightenedjudicial activism —had insisted that judicial experience be a qualification for nominees to the Court. 184 JOURNAL OF SUPREME COURT HISTORY A Justice’s pre-Court experience figured prominently on an occasion shortly after Solicitor General Elena Kagan joined the Court in 2010. In a classroom of thirty undergraduates, this essay’s author distrib uted a table that listed the name ofeach ofthe sitting members of the Court, along with the date ofthe appointment ofeach, age at the time ofnomination, the appointing President, name ofthe Justice each had replaced, and the position held at the time ofnomination. I then asked my students for comment about anything on the table that struck them as noteworthy. Reactions varied considerably. Several noted the presence of three women. A few remarked that the Court of 2010 was the handiwork of five Presidents. Two thought some of the Justices seemed very old. Only one found it significant that all but Elena Kagan reached the High Bench from one of the U.S. Courts of Appeals. Their assumption —in a baseball analogy—was that if one wants to pitch and bat at Wrigley Field, the player must first pitch and bat in the minor leagues. Indeed, in the judicial context, that assumption seems to have been held by most recent Presidents. Moreover, had the table been constructed to reflect the Court before Justice John Paul Stevens’s departure and Justice Kagan’s arrival, it would have depicted a Bench where every Justice stepped to the top from one of the courts of appeals. Furthermore, Justice Sandra Day O’Connor’s retirement—she had come to the Supreme Court from the Arizona Court of Appeals— and Justice Samuel A. Alito’s arrival created an unprecedented situation: for the first time since the federal courts of appeals were created in 1891, every Justice had seen prior judicial service at that level, most often on the Court ofAppeals for the District ofColumbia Circuit. Moreover, even the failed presidential selections of recent decades overwhelmingly involved sitting judges: Judge John Parker, Justice Abe Fortas...