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.It appears that President Obama feels much the same way:"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.
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.Thomas Sowell, writing here, here and elsewhere, disagrees.
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.
Article comments
— go to most recent comments1 - Clavos
Leave it to Leahy to be among the proponents for inexperienced justices.
What a moron.
2 - Doug Hunter
They want someone who'll place the liberal agenda first and interpreting the law optional... pathetic. Then they bring the obligatory race and sex into it saying they want to nominate a woman or minority... aka, they are actively discriminating against white males. I thought discrimination based on race and sex was against the law. Even if they do want those characteristics doesn't it set a bad example to openly flaunt anti-discrimination laws? Where is the EEOC when you need it?
3 - Dave Nalle
Just so long as they don't pick another Italian...
Dave
4 - M a rk
From Sowell's article: "Appoint enough Supreme Court justices with "empathy" for particular groups and you would have, for all practical purposes, repealed the 14th Amendment, which guarantees "equal protection of the laws" for all Americans."
But doesn't the reverse hold as well? Appointing enough judges lacking empathy for certain groups would lead (has led?) to the same result.
5 - roger nowosielski
Treat everyone alike and make no allowances whatever - that's the essence of morality and justice. Empathy is for suckers.
6 - M a Rk
Spoken like a true solipsist.
7 - roger nowosielski
It would be helpful, Dan, if you were to provide some examples here when, in your opinion, the constitutional issues were improperly decided because of the justices' empathy (or what you might prejudice). This is, after all, your article's main point.
"However, when Constitutional issues are squarely presented and have to be decided, they try to do so. It is in such uncommon cases that the judicial philosophies -- and now, possibly, the empathies -- of the judges may come into play."
8 - roger nowosielski
It was tongue in cheek, Mark, in case you hadn't noticed.
9 - M a Rk
Yes, Rog. I understood the role you were portraying.
10 - roger nowosielski
What's being missed in this argument is that there has been a long standing practice to appoint the justices as based on their positions re: certain key and hotly-controversial issues, regardless of which party occupies the Oval office. This has certainly been the case with Bush's two appointees, and this tradition of politicizing the appointments, though unfortunate perhaps, is a fact to be reckoned with.
It would be rather unrealistic to expect that the present administration were to somehow discontinue the pattern and inject purity into the process.
11 - roger nowosielski
Of course, the party that's no longer in power has only hope as available resource - hence this grasping at straws.
12 - roger nowosielski
BTW, Mark, I'll have two articles coming up shortly - on the nature of historical progress and the material conditions which had made it possible, so I hope you'll participate when they're out.
13 - M a rk
I look forward to reading them, Rog.
14 - roger nowosielski
OK. Later then.
15 - Dave Nalle
I thought Roger was being serious. Ah well, another hope dashed in the era of hopey-changeyness.
Dave
16 - Glenn Contrarian
Dan -
You wrote a good article with clear, logical arguments - and you're right.
But the 'but' is almost obligatory in our discussions on this site - so of course I must ask what was your opinion on Bush v. Gore? I suspect I know what you answer will be....
17 - Clavos
For all of his decrying of the rigidity and adherence to ideology of the right, Roger is himself an unswerving liberal "progressive" (love that euphemism!). Any putative evidence to the contrary presented by him on these pages should be taken with an enormous helping of salt.
18 - Glenn Contrarian
Dan -
I just read your article again...and now it seems you're placing far too much emphasis on 'empathy'.
I know that if you listen to the right wing, that's the ONLY requirement they'll tell you Obama's looking for. Let's compare some of the OTHER qualifications Obama's looking for:
"I will seek someone who is dedicated to the rule of law, who honors our Constitutional traditions, who respects the integrity of the judicial process, and the appropriate limits of the judicial role"
Read that closely, then think "Harriet Miers", "Alberto Gonzales", "John Yoo", "Baybee"
Tell me, Dan - considering the right wing's track record of picking judges, do they have ANY room whatsoever to talk?
19 - Clavos
Tell me, Dan - considering the right wing's track record of picking judges, do they have ANY room whatsoever to talk?
Talk about strawmen!
What the hell do any of those have to do with Dan's right to express his opinion as to how the judicial selection process should be managed/improved?
That smacks of an attempt at guilt by association.
"I will seek someone who is dedicated to the rule of law, who honors our Constitutional traditions, who respects the integrity of the judicial process, and the appropriate limits of the judicial role"
Lip service when stacked against the "empathy" objective, as Dan thoroughly dissects in the article.
20 - Cindy
The 'rule of law' seems to be dredged up and utilized like one of those light sabers from Star Wars, whenever it's convenient to give an impression of being noble and on the side of truth, justice and all that mythical BS.
Words, words, words...I'm so sick of words. They seem like nothing but tools people use to warp reality sometimes.
21 - Baronius
Ma r
k - What role does empathy play in a legal decision? If it has any effect at all, it would be as an impediment to objectivity. "Too little empathy" doesn't make sense. It's equivalent to saying "too much impartiality".
Roger - The Bush appointees weren't chosen because of their record on specific issues. That is a gross misunderstanding. They were chosen because of their approach. In recent decades, 100% of Democrat-nominated justices and 50% of Republican nominees have been activists. Bush made his picks based on their originalism, not their politics.
Dan(M) - How would you feel about nominees with state supreme court experience?
22 - Baronius
Cindy, why did you put "rule of law" in quotes? It's not that you oppose "rule of law"; you oppose rule of law.
23 - Clavos
Dan(M) - How would you feel about nominees with state supreme court experience?
Good question.
Cindy, "Rule of Law" (with or without the quotes) is a fundamental principal of our national governance, and one of the more important ones, to boot. Among other things, it helps to prevent defendants from becoming victims of whim and/or fashionable and politically correct thinking on the part of jurists.
I can't understand why you would be opposed to it.
24 - M ar k
Baronius, your argument would work if empathy and impartiality were related as you imply.
Objectivity is 'in the eye of the beholder.'
25 - M ar k
Clavos, if one were to oppose the whole 'national governance' thing then it would follow that its fundamental principles would be on the shit list as well.
Among other things, it helps to prevent defendants from becoming victims of whim and/or fashionable and politically correct thinking on the part of jurists.
yer kiddin', right?