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How to Judge a Potential Justice

It is possible to ask a potential Supreme Court justice useful questions — if the senators involved want information, instead of an opportunity to make speeches.

by
Dan Miller

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May 2, 2010 - 12:00 am
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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.

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