Replacing Souter: Criteria for a Supreme Court Justice
The Constitution of the United States does not give any binding criteria of eligibility for Justices of the Supreme Court. This contrasts strongly with the President and members of Congress in which age and citizenship requirements are spelled out (the President and VP may not be naturalized citizens). Theoretically, anyone could be appointed to the Supreme Court–provided the Senate approves for the Constitution requires the “advice and consent” of the Senate. Usually, this has meant a simple majority unless an attempt at filibuster means that 60 senators must agree to “invoke cloture” and end debate and go to a vote.
In practice, however, Justices have always been appointed who were familiar with the law of the land. They were expected to be lawyers who had passed the bar exam and were licensed to practice law in one or more of the respective states of the union. After law schools became common (19th C.), all Justices were expected to have law degrees. Sitting judges from lower courts, especially appellate courts, have formed the bulk of the Justices. (All of the current members of the Supreme Court were appellate judges, for instance, though both Souter and Clarence Thomas had only served briefly before being nominated to the Supreme Court of the United States [SCOTUS].) But that has not always been the case. Beginning with the first Chief Justice, John Jay (1745-1829), there have been numerous justices who spent part of their careers as working politicians. (Jay had been President under the Articles of Confederation, prior to the adoption of the current Constitution, as well as minister (ambassador) to France and Spain and later Secretary of Foreign Affairs (i.e., Secretary of State). A signer of the Constitution, he was also a co-author of The Federalist Papers. Later he was Governor of New York.) In the 20th C., such working politicians who became Supreme Court justices included William Howard Taft (previously U.S. President), Charles Evans Hughes (former governor of NY and Republican candidate for U.S. president), Earl Warren (former governor of California), and Hugo L. Black (Democratic Senator from Alabama). There have also been numerous legal scholars at law schools and high-ranking members of the Department of Justice–especially Attorneys General and Solicitors General. (The great Thurgood Marshall, first African-American justice, had been Pres. Lyndon Baines Johnson’s Solicitor General. The Solicitor General pleads the government’s cases before the SCOTUS.)
So, Pres. Obama has a wide array of choices before him. The Senate favors confirming appellate judges, but Obama has said he is looking for someone with real world experience, not just academic brilliance. So, he might incline to reviving the tradition of appointing a working politician, or someone working as legal counsel for a human rights organization or for labor or for children. We also know he favors brilliance and he favors legal appointments whose legal degrees come from the Ivy League schools (Harvard, Yale, Columbia, Princeton, ) or sometimes Chicago or Stanford. In my view, this is a welcome change from the Bush administration’s habit of appointing legal people with degrees from fundamentalist diploma mills like Pat Robertson’s Regent University, but that Obama should work to diversify. There are plenty of excellent legal minds which went to good law schools attached to state universities (e.g., University of Michigan) and from a much broader range of the country. The Ivy League is excellent, but is not everything.
If I were a gambler (which I am not), I would wager a large sum that his appointment will be a woman. We only have one woman on the Supreme Court and this is far inferior to other nations. Further, we know from studying appellate courts that the presence of more than one female judge influences the judgments of the male judges. Since women are 51% of this country, this imbalance is long overdue correcting. And women are nearly 60% of the Democratic Party, so Obama will feel major pressure to appoint a woman–to say nothing of the fact that Michelle Obama, his wife, is also a Harvard-trained lawyer.
There will also be pressure from African-Americans to appoint another African-American and from Hispanics to appoint the first Hispanic justice. (Asians and Native Americans are too small a fraction of the population to put real pressure on Obama in this way, but they will doubtless lobby for a member of one of their ethnic groups, too.) Yet, Obama has never been the “quota” type of Affirmative-Action believer. He has a diverse cabinet, but looked to qualifications first and foremost. (Those on the right who predicted he would fill his cabinet with African-Americans have been shown wrong. If anything, they are slightly under-represented.)
I would love to see greater diversity on the court, but my priorities are excellence, defense of civil liberties, and a tilt toward seeing the law on the side of the poor, marginalized, and weak, rather than on the side of corporations.
If I were advising the president (yeah, right), I would want someone who:
- Believes strongly in religious liberty and church-state separation. Membership in Americans United for Separation of Church and State or a similar group would be a huge plus. If the nominee is a judge, I would look for opinions that represent the previous high separation standards, prior to the erosion of the wall late in the BurgerCourt and all through the Rhenquist Court and continuing so far in the Roberts Court.
- Believes strongly in civil liberties more broadly, especially free speech, assembly, privacy, the press. I would want a justice that defends the civil liberties of suspects, too, and keeps high standards for police and government agencies in the collection of evidence.
- Is suspicious of the very idea of corporations as persons (Santa Clara County v. Southern Pacific Railroad, 1886) and generally favors the rights of individuals over corporations and the common good, including the ecological common good, over corporations.
- Believes in equal justice for all regardless of race, religion, ethnicity, sex, gender identity, sexual orientation, or physical or mental disability.
- Believes strongly in the separation of powers and checks and balances and rejects the “unitary executive” idea of Yoo and co. which makes the president an elected dictator, at least in time of war. Strongly reserves the right to declare war to Congress as Article 1 prescribes.
- Is more inclined to see democracy threatened by state secrets than by too much information in the hands of the people.
- I would love a true opponent of the death penalty, no hedging, on SCOTUS, since we have not had one since Marshall’s retirement. (We never had a majority of those believing the death penalty was wrong.) However, if this was well known, I am not sure such a person could get confirmed by the Senate. Fortunately, abortion comes up at senate hearings far more often than the death penalty.
- I would love someone who believes that Article 1 of the Constitution means what it says–that ratified treaties share with the Constitution the status of “highest law of the land.” Thus, no executive can decide that the “Geneva Conventions are outmoded and quaint” as some of the Bush administration did.
Would such a nominee be able to be confirmed? Hard to say. Much would depend on the person’s ability to articulately defend her or his views before the Senate. It’s not the Republicans so much that Obama’s nominee would need to watch (now that they have only 40 seats in the Senate!), but the centrist and conservative Democratic senators who meet with Evan Bayh of Indiana. If Obama’s nominee seems to them to be too far from mainstream legal opinion, s/he would be in trouble. So, for instance, I think we could get a strong torture opponent, but not someone who was as outspoken against torture during the Bush years as Dawn Johsen, Obama’s yet-to-be-confirmed nominee for Deputy Attorney General for the Office of Legal Counsel. Obama wouldn’t want to see such a long hold up.
What criteria would you suggest for such a nominee?
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