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. Fortunately, that seems quite unlikely to happen. In any event, there being none, this article is not about the Constitutional qualifications of Supreme Court justices.
Recently, President Obama indicated that in deciding upon a nominee to replace Mr. Justice Souter, he will look most closely at those who are unusually empathetic, probably toward whatever groups he has in mind. I assume that's what he means, because most everyone is empathetic toward someone or some group, but most have more empathy toward some than toward others. I assume that he will not look for someone with great empathy toward the Klu Klux Klan or even Tea Party proponents.
President Obama is being urged to lean more toward "empathy" than experience by some of the higher-ups in his party.
Some of the senators who will conduct confirmation hearings for Justice David Souter's replacement think it's time for a nominee who hasn't served on the federal appeals court. For all nine of the current justices, the appeals court was a final stepping stone to the Supreme Court.
"I would like to see more people from outside the judicial monastery, somebody who has had some real-life experience, not just as a judge," said Vermont Sen. Patrick Leahy, chairman of the Senate Judiciary Committee.
It appears that President Obama feels much the same way:
He has indicated that he wants a candidate who has a less traditional résumé, in order to bring diversity to a high court now filled entirely by former appellate court judges.
As White House press secretary Robert Gibbs put it, Obama is looking for "somebody who understands how being a judge affects Americans' everyday lives."
Not really coming to grips with the idea of "empathy," Oliver Willis in an article in Huffington Post and probably elsewhere, opined that President Obama should nominate a "liberal," more than likely meaning "leftist," and with sufficient Democrats in the Senate, his appointee will be approved.
We need someone who is solid as a rock on civil rights, right to choice, limits on corporate power, and an overall progressive viewpoint on the Constitution, our laws, and the overall role the court has to play.
My gut says that President Obama understands all this, and the last 100 days have led me to believe that at the end of the day his choice will fit the bill.
That President Obama has made "empathy" with certain groups one of his criteria for choosing a Supreme Court nominee is a dangerous sign of how much further the Supreme Court may be pushed away from the rule of law and toward even more arbitrary judicial edicts to advance the agenda of the left and set it in legal concrete, immune from the democratic process.
Before attempting to discuss the impact of "empathy," and left-right orientation versus judicial experience, it seems useful to attempt to define the rather different jobs of lawyers, of academic types, of Federal appellate court judges and of Supreme Court justices. Surely, we need to have some idea of what these folks are expected to do in order to decide what their qualifications should be.
Much of the work done by the Supreme Court is quite similar to the work done by other Federal appellate courts. The main difference is that the Supreme Court can overturn the decisions of lower Federal (and sometimes, state) courts, while only the Congress and the President, acting together, can nullify a decision of the Supreme Court. The Supreme Court can overrule its own past decisions, but rarely does so directly. Unlike decisions of the lower courts, Supreme Court decisions become, at least for a while, the law of the land. Although a decision by, for example, the Court of Appeals for the Fifth Circuit, becomes the law of the land in so far as all lower Federal courts within the Fifth Circuit are concerned, it does not bind the Federal courts in the other circuits. One of the fundamental reasons for the Supreme Court to take a case is a split among the Federal circuits; when it does so, what it says, provided it is not dictum (extraneous language unnecessary to its decision), binds the Federal courts in all circuits. The Supreme Court thus can have far greater impact on the United States as a whole than can any other court in the land.