The minute Justice David Souter announced his imminent retirement from the Supreme Court, the media began to engage in rampant speculation about who President Obama would nominate and what criteria would guide his decision. Unfortunately, most of the speculation centered on wrong-headed criteria like race, gender, political leaning, and vague notions of empathetic experience.
Questions abound. How will the President “diversify” the bench? Will he nominate a member of a racial minority? Will he nominate a woman? Will he nominate someone from a unique religious background? Senator Arlen Specter told NBC that he hopes the President will “choose someone with diversity.” “Women are underrepresented on the court,” he declared. “We don’t have an Hispanic. African-Americans are underrepresented.” There is intense pressure on the President to satisfy this “diversity quota,” regardless of whether a candidate is the most qualified for the post.
A new element has also been introduced into the discussion of President Obama’s upcoming nomination: empathy. Mr. Obama stated that he plans to nominate a candidate who possesses “empathy and understanding” and “who understands that justice isn’t about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people’s lives.” This rather vague quote is elucidated by President Obama’s previous speech to a Planned Parenthood conference in 2007, in which he maintained, “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom [That's code for "My nominee will support abortion on demand."]; the empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.”
The criteria identified by Mr. Obama provide a poor foundation on which to base the nomination of a Supreme Court Justice. Race, gender, and religious background should not determine a person’s qualifications to sit on the bench of the highest court in the land. Emphasizing these criteria will only perpetuate the racism, sexism, and religious discrimination he purportedly decries.
Injecting race, gender, and religious background into the judicial selection process amounts to little more than “pandering” to voter groups. Janet Murguia, President of La Raza (a Hispanic-American interest group), acknowledges as much: “There are high expectations because of the turnout we saw in the Latino community. I think [picking a Hispanic] would go a long way to helping the Latino community feel they were recognized in terms of that support.” Supreme Court Justices ought not to be used as a medium of exchange to purchase the votes of special interest groups.
The proper criteria for choosing a Supreme Court Justice are largely ignored by the chattering class; hence, they are often poorly understood by many Americans.
The first criterion involves the candidates’ character. Do they have a history of honesty and integrity? Are they incorruptible, unpurchaseable? Can they resist a bribe or attempts by litigants or third parties to exert undue influence? Do they crave the approval of the crowd? Can they handle criticism by the media? Will their heads be turned by adulation or their egos wounded by scorn? Are they secure in themselves or do they require validation by others? Do they have the strength of character to subordinate their own beliefs or desires for a particular outcome for the one required by the law? Can they be evenhanded to the litigants that come before them? Can they say “yes” to the poor and “no” to the rich if the law requires it? Conversely, can they say “no” to the poor and “yes” to the rich when the law demands it?
Intellect and Judgment
A second criterion for choosing a Supreme Court Justice has to do with the candidates’ intellect and judgment. Do the candidates have the intellectual acumen necessary to understand complex legal and substantive issues? Do they have the intellectual curiosity it takes to unravel arcane issues that span a broad range of subjects? Can they articulate the basis for their decision making in writing? Do they have the judgment that enables them to distinguish the important from the inconsequential? Can they identify the strengths and weaknesses in the arguments advanced by the parties and their colleagues?
Fidelity to the Law
A third criterion for judicial selection has to do with knowledge of, and fidelity to, the law. Do the candidates have a good grasp of a broad range of legal subjects? Do they understand the law and the Constitution? If they don’t know the law (and no judge knows it all) are they willing to learn it? Having learned it, will they apply it faithfully?
Finally, judicial philosophy is a critically important criterion to consider when it comes to selecting a Supreme Court justice. Will the candidates respect the other branches of government as the equals of the judiciary? Do they recognize the differences in the roles of the three branches of government? Will they respect those differences and resist the temptation to assume a role that doesn’t belong to them? Do the candidates understand that words have meaning and that the Founders and legislators had a particular intent when they penned them? Will they honestly try to discern that intent and interpret and apply the law accordingly? Or will they disregard that intent and accord the words a new meaning that allows them to reach their desired, rather than the required, outcome?
Selecting a justice to serve on the Supreme Court is a weighty responsibility. So is the decision by the Senate to confirm or reject the nomination. Politics should be set aside and a careful analysis of the nominee’s suitability to serve should be carried out using appropriate criteria. Americans will live with the consequences of the decisions for decades.
We can only hope that the President and the Senate are up to the task.