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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

Bio

May 2, 2010 - 12:00 am

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.

The requisite judicial experience and temperament are what matter. These have as a very important, and in my view overriding, component: respect for and adherence to the Constitution. 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. The Philadelphia firefighters decision, in which she joined but which she did not write, was ill decided as the Supreme Court later concluded. To her credit, after joining in a Second Circuit opinion upholding without comment a somewhat dim-witted decision of the district court, Judge Sotomayor joined in a per curiam decision in essence asking the Supreme Court to sort things out, as it eventually did.

In my view, the focus of the Senate in considering the qualifications of the next Supreme Court nominee should be on his judicial qualifications and temperament, including most importantly his respect for and adherence to the Constitution. Unfortunately but most likely, there will be litmus tests involving such matters as the recent Citizens United decision, barely read by many commentators who nonetheless pontificate on it. The nominee’s views of Roe v. Wade, the Supreme Court’s now more than thirty-year-old abortion decision, will also doubtless be examined in litmus test fashion in a political or ideological context, as happened during the 2008 presidential campaign.

Citizens United held that corporate and union speech in a political environment is protected by the First Amendment and that some but far from all of the limitations placed upon it by the Bipartisan Campaign Reform Act of 2002 violated the First Amendment. The Court held that corporations and unions can spend their own money, independently of any candidate or party, to produce and air expressions of their own political views, provided that the source of funding is disclosed in accordance with law. The way was left open for expanding the disclosure requirements and in other ways narrowing the scope of Citizens United, provided only that the First Amendment be given full effect. It is not the proper function of the Supreme Court to rewrite legislation, and questions of how or whether a nominee to the Court might wish to do so should be out of bounds. Although these would be good questions to ask political candidates, they are very poor questions to ask potential judges and justices.

Roe v. Wade expressly refused to decide when life begins, essentially a religious/ideological issue. The Court said:

We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.

Instead, the Court focused on the rights of the states to interfere with the right of a pregnant woman to abort her fetus.

Nebraska has enacted new legislation

banning most abortions 20 weeks after conception or later on the theory that a fetus, by that stage in pregnancy, has the capacity to feel pain. Obviously a contentious matter, the law is nearly certain to set off legal and scientific debates.

Abortion opponents praised the law and said it was justified by medical evidence gained since Roe v. Wade was decided in 1973. Abortion rights advocates said that the measure was unconstitutional, and that the motive behind it was to set off a challenge to legalized abortion before the United States Supreme Court.

The new Nebraska law may or may not be consistent with Roe v. Wade and/or the U.S. Constitution. It raises many interesting issues, properly subjects for another article; I intend to write one. They are not questions to be asked of a Supreme Court nominee who, if elevated to the bench, will probably be one of those called upon to participate in deciding them. Neither are questions about the constitutional implications of Roe v. Wade or Citizens United. To answer such questions going beyond the most vague of generalities would make it difficult if not impossible for the nominee, as a Justice, to participate in considering challenges to the new Nebraska law or implicating either Roe v. Wade or Citizens United.

As Judge Tatel of the District of Columbia Circuit Court of Appeals noted in an address to folks from the Environmental Protection Agency last year:

My court hears almost all the administrative law cases that matter, and so if I go much beyond the fundamentals, I’ll end up having to recuse myself from all the interesting cases.

To an even greater extent, for a potential Supreme Court justice to go much beyond the fundamentals would be very ill advised.

What sorts of questions should judicial nominees respond to, beyond name, rank and serial number?

One absolute no brainer would be, “Do you support the U.S. Constitution and consider it the supreme law of the land, and in what general circumstances, if any, do you think it should not be upheld?” This is obviously a very open-ended question but one capable of being pursued to see where it leads.

Maybe something like this: “The Constitution tries to delineate the rights and powers of the federal government and the states. Without going into specifics, what are your general views on the delineation?” Or maybe something like this: “Most Supreme Court decisions are comprehensible only to attorneys. Is it possible to write decisions so that non-lawyers can understand them readily? If not, why not, and if so, how might you go about it?” These are hardly “softball” questions and do not solicit the sort of specifics no competent nominee could provide without endangering his ability to function as a justice.

One of the occupational hazards of political creatures is their apparently irresistible impulse to make speeches. This impulse should not be shared by members of the judiciary. Giving in to it would likely require a nominee subsequently as a judge or justice to recuse himself from considering many cases coming before him during a term of office limited only by a summons from the grim reaper.

Dan Miller graduated from Yale University in 1963 and from the University of Virginia School of Law in 1966. He retired from the practice of law in Washington, D.C., in 1996 and has lived in a rural area in Panama since 2002.
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