How to pick a Supreme Court Justice
Published 10:03 am Friday, July 17, 2009
There is already in place a short course on how NOT to pick a Supreme Court Justice. It is the exercise in Senate confirmation that we are now witnessing.
As a social ritual it is filled with storm and fury but considerably light on reason and common sense.
The current process has the President name a nominee and follows the constitutionally dictated path to the Senate for advice and consent.
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This is not an insignificant task, since the nominee, if approved by the Senate, will have a lifetime seat on a court that occasionally shapes the nation by its interpretation of our laws and constitution.
The nominee, if selected by a Republican president, is expected to hold Republican values which, in recent times, would mean a respect for big government and big business and a casual disregard for individual rights.
If a Democratic president is in office the candidate is expected to value big government as well, but individual rights to a far greater degree than a Republican nominee, and big business rights not so much.
While these generalizations may certainly vary from candidate to candidate, they serve to establish a baseline for any nominee prior to academic credentials or experience.
In fact, credentials seem significantly less important to many senators than do the political positions held by the candidate. For example, Clarence Thomas had little to offer in terms of judicial experience, but a great deal to offer in terms of his conservative perspective of the law and the constitution.
Once the nominee is named by the president, the new nominee is critiqued by the loyal opposition in the media and supported, though somewhat less, by the party in office. Essentially, the candidate is nicked and scratched before their hearing in front of the Senate Judiciary Committee.
When the Judiciary Committee meets it is a televised event, a made for TV setting where theater is significantly more important than content. Opponents hope to ask questions that will either embarrass the candidate or result in the candidate making a headline setting but injudicious remark. In contrast, supporters, those of the party in power, ask innocuous questions designed to flatter the candidate or extol their virtues.
None of this results, generally, in any information exchange of meaning between the candidate and the Senate. As a result of rancorous hearings in recent years, candidates no longer share their views on key public issues.
You are more likely to have revealed the KFC secret recipe than find out Judge Sotomayor’s views on abortion, the right to bear arms, or freedom of speech.
Ultimately the candidate is either caught in a fatal TV mistake or confirmed. Hardly a noble process or meaningful outcome.
What is missing is an authentic review of the record of the judge, or an examination of the judge as a person.
President Obama said, without apology, that he sought a judge who would possess empathy. Republicans recoiled in horror at the very concept, instead demanding a judge reflecting total objectivity. But if our judges come to their tasks only filled with objectivity, then why would we value having an African American justice, a Jewish justice, women justices or white justices? Why, if objectivity is the sole value, would it matter what experience a judge brought to the bench?
We value differing backgrounds in our judges because perspective provides insight, and insight informs understanding both of the law and the challenges to the law. Insight allows a woman to better understand sexual harassment and how it might play out at work than a male justice, one equally familiar with the law, might understand.
Indeed, experience provides wisdom and serves a justice better than any other attribute. Our most famous justices are not noted for their constitutional acumen, but for their ability to render decisions that reflect how the constitution serves the people and its history together.
Jim Crawford is a contributing columnist for The Tribune and a former educator at Ohio University Southern.