How to Judge a Potential Justice
Lawyers are strange critters. Frustrations have long been expressed that decisions of the Supreme Court and of lower appellate courts, written by lawyers, are so damn long and complicated that only brother members of the world’s oldest profession can understand them. Shakespeare is credited with the phrase, “Let’s kill all the lawyers,” but that’s probably not exactly what he meant.
It was noted in National Review’s April 13 Morning Jolt that
From where I sit, the modern Supreme Court has become way too wrapped up in its mystique and grandeur and inscrutability; it feels like every year or so, some intensely divisive political issue comes before nine folks, some of whom are relatively well-known (Scalia, Ginsburg) and some of whom are obscure (quick, pick Anthony Kennedy or Stephen Breyer out of a police lineup!), and they decide for us, whether we trust their good sense or not. They offer a lengthy explanation, but if you don’t have a law degree, large swaths of it are indecipherable. Half of us end up infuriated, and half of us rejoice.
True, of course, but probably impossible to avoid. The courts often have to fix the messes they and others have created and thereby try to push things along in the ways envisioned by often complex statutes (the 2,700 page health control law, for example, with multiple cross links to other statutes) and a succinct Constitution written long before any of us were born and with a long and occasionally dubious history of interpretation. The questions before the courts are not and should not be whether the judges like the laws at issue, think they are in the public interest, think they would have written them differently had they been legislators, or would like to rewrite them now. That is not their job. They are in essence umpires (no, not vampires). They are not (or in any event should not be) on any team and should merely call the shots as they see them, as impartially as is possible. Believe it or not, many if not most of them try very hard to do just that.
With the imminent retirement of Justice Stevens this summer, President Obama will nominate his successor. It will then be up to the Senate to decide whether to confirm him. As I noted here:
The United States Constitution is silent as to the qualifications of Supreme Court justices. An illiterate ninety year old citizen of North Korea suffering from senile dementia and on life support could, consistently with the Constitution, be nominated by the president and approved with the advice and consent of the U.S. Senate.
The process has gone astray many times and probably will this time as well. It shouldn’t. Good nominees have been Borked and less than adequate ones have been approved. President Obama unfortunately won the election and must be expected to nominate justices holding views on social issues similar to his own. Other presidents have done the same and have occasionally been disappointed by the results. President Eisenhower is said to have claimed that his appointment of Justice Warren was the worst mistake he had ever made. Justice Souter, who retired last year and was replaced by Justice Sotomayor, was nominated to the Supreme Court by President George H.W. Bush.
Senatorial hearings are never about the “purpose of the hearing” but a reason for those in Congress to pontificate adn get their ugly mugs on television. Why would anyone think it will be different this time?
“Justice Sotomayor, who certainly would not have been my choice for the Supreme Court, had more than adequate judicial experience and an at least reasonably good judicial temperament. The decisions in which she participated as a judge on the Second Circuit Court of Appeals were generally but not uniformly workmanlike.”
Typical Yale school toadie sentiment. So you are saying the Second court, who booted Ricci (New Haven, CT firefighers), was doing the right thing? That means Sotomayor, who was silent, demonstrated good judicial temperment? Wow, your bar is lower than mine, and I’m not a lawyer..
Her “empahty” temperment is seen by you as being a good source for her to render decisions. What happened to depending upon the Constitution?
Doe her “wise Latina” crack reveal good temperment?
Afraid to really dig into the substance of a fellow graduate of the Ivy League. Do us a favor and update this with a much deeper understanding of her rulings and then tell us about her fitness for the bench.
It has been a sad conclusion I have reached over the past two years: the loons of the left have intimidated the conservatives and driven them to submission; they have imposed on them what are “legitimate” questions to ask, have pushed exclusively their national agenda items, and allowed them to scrutinize what the left agrees is legitimate to subject to scrutiny.
Outrageous and painful as it may be, it’s also the truth. This issue about what is a good “test” for the SCOTUS nominee is another exercise in futility.
Let me offer an obvious example: when the left was interested in the McCain “eligibility” issue in 2008, they were getting their way, so much so that the Senate had to pass a non-biding resolution; but when the right wanted to bring up BHO’s eligibility issue, the left shut it down by labeling it the “birthers” issue. This simple fact tells me that the right has no chance in fighting the left. They have been largely if not totally intimidated. They can’t stand up to them, and all seems to be a lost cause.
There is solid evidence that McCain was born in the Canal Zone. While some could indeed argue that since this isn’t part of the US, he wouldn’t be eligible, it was simple to point to both law and court cases that make those born on military bases/embassies/etc. are in fact de jure, if not de facto born on US soil.
In Obama’s case, the evidence that he was born in Hawaii is conclusive.
The Supreme Court has become just another plum in todays political circus. Of course Obama will appoint a like mind individual to sit on the highest court in the land. Expect nothing less. I can neither endorse the President or anyone that he picks from his seemingly bottomless pit of cronies. Of course the appointee if approved, might actually use the occasion to rise above the tant of an Obama insider and become a great judge. Don’t hold your breath.
I’d prefer something a little more straightforward. The question: “How do you square the expansive Commerce Clause of Wickard v. Filburn against the doctrine of enumerated powers?”
The “tell” is if the nominee spits at the citation before he answers. Anyone who treats it as a serious question is too full of “emanations and penumbras”.
And, yes, I realize that 90% of post-”New Deal” justices treat it as settled law. That doesn’t make it right.
As I said in the article, Second Circuit judge Sotomayor would not have been my choice; however unfortunate it may be, Obama is the President. It would be naive to expect him to nominate someone I would like, and “like” is not a good test. The One won, we are stuck with him at least until January 2013, and need to expect some unfortunate things as long as he remains in office; there have already been quite a few. Loss of a Democrat majority in either or both houses of the Congress would help, but it would not eliminate all opportunities for mischief.
Judge Sotomayor had ample judicial experience, as both a trial judge and an appellate judge. She also seems to have had a reasonably good judicial temperament. I understand that she at times appeared abrasive or even abusive during oral arguments. I never argued a case before the Second Circuit. In arguing cases before the D.C. Circuit, and years earlier before the Court of Military Appeals, I much preferred judges who asked penetrating questions, even when indicating disagreement with my position. That gave me my only real opportunity to address, specifically, the concerns they expressed. I understand that Judge Sotomayor frequently asked such questions during oral argument.
Anyone nominated to the Supreme Court by President Obama will, as noted in the article, share his social views. The replacement of Justice Stevens should not dramatically upset the current 5:4 balance on the Court. Neither did the appointment of Justice Sotomayor do so significantly. If another justice retires during his term of office, it will probably screw things up. Let’s hope that he is not reelected and that between now and January 2013 no more justices die or retire.
There have been suggestions that the replacement for Justice Stevens may be someone with no judicial experience; I think that would be a very bad idea. An appellate court, state or federal, is the best place for on-the-job-training; the Supreme Court is not. Precedents set by state supreme courts and federal circuit courts are binding only within their jurisdictions. Supreme Court decisions are binding on all courts in the United States and are hence potentially far more harmful.
Here is an interesting comment by Mr. Justice Stevens on the sorts of questions appropriately asked of judicial nominees. I pretty much agree.
Dan, I agree with you about Justice Sotomayor. She might not have been my choice, had I been president, but I think she’ll do a pretty good job. And it doesn’t always matter whether there’s a liberal or conservative president, in terms of getting quality nominees for the Court. Remember George Bush’s nomination of Harriet Miers? What a disaster that would have been if she hadn’t had to withdraw.
I also think the confirmation process is a mess. It’s turned into a combination inquisition and grandstanding exercise for senators. They ask questions that they know the nominee can’t or won’t answer, then pontificate for the cameras because the questions aren’t fully answered. There’s very little integrity left in the process.