The criterion I consider most important for a Supreme Court justice is experience as an appellate court judge. All of the current justices served as Federal Court of Appeals judges; I do not know of any recent prior justice who did not serve a similar apprenticeship. The Supreme Court is not a suitable place for the sort of on-the-job training which would be essential for a new justice lacking experience as an appellate court judge. In my view, it is an even worse place for on-the-job training than the White House. At least the President has cabinet members and others to advise him, and at least some of them have relevant experience. A Supreme Court justice has only his clerks to do his grunt work. He can discuss cases with them and with his brother justices. Beyond that, he is pretty much on his own. Without appellate court experience, a justice would most likely be lost. For one of the nine justices of the most powerful court in the country, lost is a bad place to be.
I do not think that experience other than as an appellate court judge is adequate. Even extraordinarily broad, lengthy and excellent experience as an advocate is not very helpful; indeed, it can be harmful, since the functions of judges and of the attorneys practicing before them are very different. Attorneys representing clients have an ethical obligation to do their best to present compelling arguments for the views of the law and of the relevant facts most favorable to the private (or, some cases, public) interests of their clients. They come to a case with their minds made up as to the desired result. It is not their function to ponder whether the greater good for humanity might result were the other side to win.
Unlike attorneys functioning as advocates for their clients, judges and justices do not have clients whom they have an ethical duty to represent as best they can. Their proper function is to uphold the law, regardless of whether as legislators they would have voted for or against it. They also have an obligation to follow legal precedent as established by the judges at courts superior to their own. If a superior court has held that a statute is unconstitutional or otherwise unenforceable, they are bound by that decision, like it or hate it. One of Thomas Sowell's excellent articles linked above and here, points to the views of one of our better justices, Oliver Wendell Holmes.
After voting in favor of Benjamin Gitlow in the 1925 case of Gitlow v. People of New York, Holmes said in a letter to a friend that he had just voted for "the right of an ass to drool about proletarian dictatorship." Similarly, in the case of Abrams v. United States, Holmes' dissenting opinion in favor of the appellants characterized the views of those appellants as "a creed which I believe to be the creed of ignorance and immaturity."Mr. Justice Holmes did exactly what, in my opinion, an unelected Supreme Court justice should do. He did not attempt to usurp the proper functions of the elected Congress or of the elected President by legislating to substitute his views of the world for theirs.
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?