[StBernard] Judging the Judges

[Westley Annis]

Judging the Judges
by Ken Connor

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 dec-
ision.  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 under-
represented."  There is intense pressure on the Pres-
ident 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 discuss-
ion 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 found-
ation 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 crit-
eria will only perpetuate the racism, sexism, and relig-
ious 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 turn-
out we saw in the Latino community.  I think [picking a 
Hispanic] would go a long way to helping the Latino comm-
unity 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.

Character

The first criterion involves the candidate's 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 head be turned by adulation or their ego 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 candidate's intellect and judgment.  
Does the candidate have the intellectual acumen necess-
ary 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 sub-
jects?  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.  Does the cand-
idate have a good grasp of a broad range of legal sub-
jects?  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? 

Judicial Philosophy

Finally, judicial philosophy is a critically important 
criterion to consider when it comes to selecting a 
Supreme Court justice.  Will the potential new judge 
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.  Does the 
candidate understand that words have meaning and that 
the Founders and legislators had a particular intent 
when they penned them?  Will they honestly try to dis-
cern that intent and interpret and apply the law accord-
ingly?  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 Sen-
ate to confirm or reject the nomination.  Politics 
should be set aside and a careful analysis of the nom-
inee'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.