How to Judge a Potential Justice

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.