Felix Frankfurter Quotes

This was more than a general observation at the time. Elena Kagan had just gone through difficult and extended Senate confirmation hearings to be a Justice of the Supreme Court. She was confirmed but there was a substantial Conservative opposition to her on the grounds that she had not served as a judge, although she had appeared as an attorney in many cases and as Solicitor General of the United States she argued cases before the Supreme Court. To many it was surprising that a sitting justice would so currently take a public position which could be interpreted as criticizing one wing of Congress, especially since that wing had been criticized for just playing petty politics and having no real substantive issues.

She had been asked how well prepared she was to be a Supreme Court Justice. Many Justices believe that the post is so unique that no amount of lower court experience can prepare one for the Supreme Court.

G. Harold Carswell was nominated to a vacancy on the Supreme Court by President Nixon. The nominee did not have a reputation as a distinguished jurist. Senator Hruska defended the nomination:

In America, the best attorneys have stayed in private practice where they could make much more money than government service or become professors and scholars of law. In either case, most have a track record that would make Senate confirmation difficult even if they wanted to be Federal Judges. A few like Abraham Lincoln went into politics. The Supreme Court is somewhat of an exception because of the power it wields, but even then many great attorneys have not been so inclined. Federal judges have usually been above average as attorneys, but not among the greatest.

From time to time, the assessment of a prospective Supreme Court justice has depended on an attempt to move the court in a particular direction or to prevent that. This is as opposed to the issue of the competence of the nominee. In most cases, such nominees may not have been the best qualified but they have been extremely competent. In a few cases, such as that of Justice Clarence Thomas, the justice was mediocre and inexperienced at best, but his virtues were his race and his total ideological consistency. Most attorneys can predict his vote in advance. He has never asked a question in oral arguments. See {623452} .

The "administrative state" was the term used for a government had had powers and used them to regulate things and areas of society without each specific regulation being voted upon by the legislature. In America sicne the New Deal there have been so many areas that have regulations that a single agency like the Environmental Protection Agency might issue in a year more regulations than the entire Congress considers in all areas put together. All these regulatory powers are delegated by Congress passing legislation authorizing it, and Congress can legislate any change in any regulation it wants, but the modern state is so complesx and areas so specialzied that Congress has preferred to delegate. There are a few who legal scholars and politicians who believe that it is unconstitutional for the legislature to delegate powers to the executive branch and no regulations have validity unless specifically passed by Comgress. There are some others who have not taken a position on this point but who believe that of an administrative state can regulate phases of citizens lives it is bound to circumscribe personal freedom as all legislation does to some extent. This quotation was used by opponents of Judge Gorsuch in arguing that he was unfit for the Supreme Court as he was out of touch with the Administrative State which America gradually became and rapidly in the New Deal and in the 80 years thereafter a very extensive administrative state. Gorsuch's views were based on classic political pholosophy but there were some ultra conservatives who did not want any regulation of business by Congress or Administrative Agencies and therefore supported Gorsuch and the few others with this view as if Agencies were not able to issue regulations there was no practical way that Congress could issue as many and regulation would be reduced which is what they desired.