Why John McCain should put Sarah Palin on the Supreme Court.

Why John McCain should put Sarah Palin on the Supreme Court.

Why John McCain should put Sarah Palin on the Supreme Court.

The law, lawyers, and the court.
Sept. 13 2008 7:49 AM

Justice Barracuda?

Why John McCain should put Sarah Palin on the Supreme Court.

If there is a lesson to be learned about Sarah Palin's dizzying political ascent, it's that America really, really loathes Washington insiders, especially those tasked with working inside Washington. The surest way to affront the American voter is to offer up a candidate with an Ivy League education, experience inside the Beltway, and robust D.C. connections. If Palin stands for anything, it's that when it comes to both the presidency and Pixar movies, nothing good ever happens until the stranger comes to town.

But while our contempt for the Washington life touches everyone in the legislative and executive branches, it's become almost a job requirement at the Supreme Court. This third branch of government is wildly overrepresented by insider lawyers with identical résumés. Sure, you can swap out one Ivy League law school for another, but beyond that, the bench is ever more populated by folks like Antonin Scalia, Clarence Thomas, John Roberts, and Samuel Alito—brilliant legal thinkers whose chief job experience has consisted of work for the executive branch followed by a stint on the federal bench. It's not that these are bad qualities in a jurist. It's just that a court that once included governors and senators and former football stars is now overrun by an elite cadre of mostly male, mostly East Coast lawyers. If ever there were a branch of government crying out for jurists with checkered and varied life experiences, it's the Supreme Court. And if any branch of government is in need of a mother of five who likes shooting wolves from helicopters, the court is it.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

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It's not just that Palin would be great for the ever stuffier Supreme Court. Closer scrutiny suggests that the Supreme Court might actually be a better fit for Gov. Palin. Consider her interests: Palin has little background in national security, health care, immigration, or foreign policy. Her main concerns have been the hot-button social issues that cannot be settled by fiat in the executive branch. Palin wants to do away with abortion and strongly opposes gay marriage. She supports teaching creationism in schools and believes in promoting religious free expression. These are constitutional issues on which Republican presidents have been thwarted for decades and on which she would offer swift and certain fixes from the court. Since the Supreme Court has often been the lone defender of the rights of women, gay couples, and atheists, installing a Sarah Palin there would do far more to undo these things than getting her into the White House ever could.

The office of the vice president may actually be the one place in which Palin's status as the pre-eminent D.C. outsider would be more a hindrance than a help. Whatever your views of Washington insiders, some knowledge of the ins and outs of Congress, the various agencies, NGOs, and lobbyists is clearly helpful in a vice president. This kind of granular understanding of how D.C. actually functions made both Al Gore and Dick Cheney such powerful vice presidents. Failure to understand it wrecked the political careers of Harriet Miers and Alberto Gonzales. Why should McCain play to Palin's weaknesses when he can capitalize on her strengths?

Sarah Palin is well aware of the awesome power of the courts. That's why, when the Alaska Supreme Court struck down a controversial abortion restriction last year by a 3-2 margin, she excoriated them for "legislating from the bench," named a new justice to the court, and pushed for the passage of an even harsher version of the same law, explicitly intended—said its sponsor—"to overturn (the Alaska Supreme Court)." Gov. Palin understands the fundamental tediousness of constitutional checks and balances. She knows that if a court gets it wrong, you just build a better one.

And finally, Palin has revealed, both as the mayor of the small Alaska town of Wasilla and then again as the chief executive of Alaska, a style of governance that features the not-infrequent firing of dissenters. Among the growing list of those dismissed or threatened with removal on Palin's watch were Mary Ellen Emmons, the Wasilla town librarian and vociferous opponent of Palin's proposal to dabble in book banning, and John Bitney, Palin's legislative director, who was dating the not-yet-quite-ex-wife of one of her husband's friends. Palin is also the subject of an ethics investigation for firing Walt Monegan, the Alaska public safety commissioner who declined to fire the state trooper divorcing her sister. I can't help but wonder if following two years of scandals surrounding Bush administration terminations of nine U.S. attorneys for their imagined disloyalty, John McCain might be nervous about installing a vice president with a proclivity toward doing the same thing. If McCain puts Palin on the Supreme Court, however, she has only a trio of law clerks and a secretary to hire, and each can be vetted for ideological purity. Once installed at the high court, Justice Palin need never again encounter a subordinate who would offer a point of view that differs from her own.

No fair arguing that Sarah Palin isn't experienced enough to sit on the highest court of the land. What matters—far more than experience—is one's unyielding moral certainty; one's gender, and being "relatable." And Palin has these qualities in spades. Washington's old-boy problem hardly begins and ends at the Oval Office. If ever there were a D.C. institution in dire need of a place to plug in a breast pump, it's the Supreme Court. And Sarah Palin has already proven that neither the courts, nor precedent, nor even the Constitution itself will be a match for the force of her will. In Sarah Palin, John McCain has found someone perfectly suited to put the "law" back into scofflaw. He shouldn't waste her talents on state funerals and photo ops.

A version of this article appears in this week's issue of Newsweek.