Wednesday, October 05, 2005

Supreme Court Considerations Revisited: State Judges and "Walks of Life"

Having no shortage of confidence (an occupational hazard -- try standing in front of a room full of eager law students without having confidence), I think my posts are brilliant. It is irksome to find some of them getting lost at the bottom of others' threads, so I am going back and picking up a few of my favorites from the pre-Miers era. (I started to edit this one to give it a bit more relevance, but frankly, I like the whole discussion. I did edit a bit for added clarity.)

Alito would be great, but he is certainly a tougher confirmation and doesn’t do much for the “all walks of life” criterion. (We’re going to balance the Court’s irrational overpopulation of Harvard grads by adding a Yalie?)

Corrigan still worries me a bit because Republican appointments of state judges have not turned out well on the Supreme Court — Brennan, O’Connor, and Souter are the most recent examples (not counting Souter’s two months at the 1st Circuit as substantive). That is not just a bit of superstition. State judges are elected, they interpret a constitution that is easily amended, and one of their explicit roles is to make and alter the common law. This leads them (1) to see themselves as representing the public, (2) to be willing to more loosely interpret laws and constitutions because if they have misunderstood the public sentiment the mistake is easily fixed, and (3) to be more active about making law — which is fine for the common law (judge made, judge unmade) but is disasterous in federal constitutional law.

An additional line of discussion that we continue to see — disputes over the “walks of life” argument — deserves additional comment.

Historically, the Supreme Court has had a balance — not the recently-minted hogwash about conservative presidents appointing liberal judges to maintain vote patterns, rather an expectation that the Supreme Court would have a geographic and cultural balance. Thus, for years, we had the idea (not always followed but at least acknowledged as an important factor) of the Catholic seat, the Jewish seat, the Southern seat, etc. Of course, the Democratic party has taken this notion of a diversity balance to such an extreme that we now have identity politics that threaten the emergence of tribalism.

Without approaching that extreme, it is still important that the Supreme Court, in some broad and general ways, reflect the tapestry of American life. It is not healthy that half the Court went to one law school and the other half represents the other 180 schools. It is not healthy if most of the Court comes from the same geographic area. That a potential justice is personal friends with other justices is not a qualification per se; the Court is not a country club. Does that mean that the president should consider geographic origin, race, gender, type of education (public/private, eastern elite/elsewhere), socio-economic background, etc.? Yes.

Contrary to the typical drumbeat on these posts, there is no one person who is the singularly best qualified person for the Supreme Court. There is no divine right of nominees. Many people are qualified and capable and (given who won the last election — elections do matter) reliably conservative, probably far more people that will ever get noticed here or by the President.

Yes, I like Williams. I like her intellect, her opinion-writing craft, and her judicial phiosophy. I like that she is female and that she is Southern (large portion of the country and certainly of the Republican base to expect it to have no seat on the Court). I like that she did not go to Harvard, that she stayed with her husband and their children in their home state and attended her home state law school. I like that she is Baptist. (I am not Baptist; far more importantly, none of the current Justices are. It is a perspective worthy of being heard and it is not already there.) I like that she lives in Orangeburg — wherever the heck that is, it obviously is not a major metropolitan area, and that is good.

That having been said, there are lots of folks who are qualified. Corrigan brings a state perspective that, while I worry about it (as noted above), is a worthy consideration. Others bring equally worthy perspectives. The President will have to balance all of those considerations and choose one person. So long as he chooses someone who is qualified, capable, and reliably conservative, the President will have been faithful to his promises, even if his first choice is not mine or yours.

Oh, those halcyon days when we thought the President would act responsibly. Instead we get a nominee who is not qualified and not capable. Under those circumstances, I could care less whether she is relably conservative.


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