It is being reported today that Justice David Souter will step down at the end of this term. Assuming this is true, I think that one of the most interesting questions in selecting his successor will be whether to follow the longstanding trend of promoting a judge from one of the nation’s intermediate federal courts of appeals. (All of the sitting Justices were selected from the nation’s circuit courts of appeals.) I understand the arguments for drawing Justices from the pool of sitting federal appellate judges: they have already survived rigorous vetting and Senate confirmation; with experience judging in an elite appellate court, they are uniquely prepared to hit the ground running at the Supreme Court level; and, coming from nonpartisan public offices, they may be perceived as more objective and neutral than nominees coming from the political sphere. I think these are all good arguments.
But I also think that any collective decision-making body benefits from diversity in its composition. For that reason, I suspect I was more sympathetic than most legal academics to the nomination of Harriet Miers. And I took umbrage at the proprietary attitude towards the Supreme Court that some people in the world of elite federal appellate practice — both liberal and conservative — seemed to evince in their dismissal of Miers.
There is a balancing act, though: diversity should not come at the expense of competence — it is important that new Justices have the sort of training and experiences in the law that will allow them to scrutinize advocates’ arguments with rigor and to write opinions that will merit the respect of even those who disagree with the outcomes. Some interesting places to look for such nominees besides the federal circuit courts of appeals would be state supreme courts and federal district courts. (When was the last time a trial-court judge was promoted to the Supreme Court?) I also like the idea of looking to a politically moderate governor or senator who has substantial legal practice experience.
I think we should hold a competition to see who can predict President Obama’s nominee for the Souter seat. One guess per MU affiliate.
My prediction is former Harvard Dean and current Solicitor General Elena Kagan.
For the record, I am the person who guaranteed that the seat that went to Justice Breyer would definitely go to a Hispanic, so my track record is somewhat less than perfect.
I choose Sonia Sotomayor of the Second Circuit. A woman and the first Hispanic on the Court. Solid credentials. Interestingly, she has juvenile diabetes, a disease that afflicts me and my family. She was mostly raised by a single mother. One could argue that her personal life experience makes her more empathetic towards persons struggling with health or economic challenges than some other recent appointees. At the same time, she is a “moderate” in any sense of the word and efforts to portray her as a flaming liberal are not borne out by her record. So what will the winner of the pool get, Gordon? How about lunch at Lake Park Bistro? If I win, I only get half the pot, since Sotomayor is the clear frontrunner right now.
Bill Clinton.
Lunch at the LPB it is. The losing entrants will treat the winner. I would have no problems with Judge Sotomayor, who as you may know is a major figure in the history of sports law because of her baseball and football decisions. In 1995, she enjoined Major League Baseball from implementing its plan to use replacement players for the striking MLBPA, and that decision forced a settlement of the strike that stopped baseball and led to the cancellation of the World Series. In 2004, she ruled for the Second Circuit that NFL draft eligibility rules were not antitrust violations in the Maurice Clarett case.
My hunch is that Obama will let his Harvard loyalties prevail in this decision and will go with Kagen.
If we take the President at his word, Judge Sonia Sotomayor would have to be the choice. After all, President Obama stated that his criteria for selecting federal judges would be someone who possesses the “heart to recognize – the empathy to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old.” Judge Sotomayor hits on several of the identity politics hot spots identified as metrics for the ideal judge by President Obama.
The first question that comes to mind: why should this matter? Doesn’t the fact that Judge Sotomayor graduated from Yale Law School, worked as an assistant DA, and a served as a federal appeals court judge for 17 years tell us more about her qualifications than her ethnicity or her diabetes? I cannot speak for the President, but I am not giving up three years of my life or $100,000 that I don’t have for my law school professors to teach me how to be “empathetic.”
Secondly, I suspect the President’s professed desire for “empathetic” judges is a fig leaf for judges who will reach the policy conclusions he favors. After all, if the President truly believed that the most important qualities for a good judge to possess were an understanding of what it means to be poor, a minority, and to face discrimination, Clarence Thomas would be his favorite Supreme Court Justice.
How the Supreme Court rules in Ricci v. DeStefano could also have a big impact upon Judge Sotomayor’s candidacy. Last year, Judge Sotomayor ruled against 20 New Haven firefighters (19 white, one Hispanic) who sued the city for denying them a promotion because of politically incorrect test results. As Judge Jose Cabranes stated in his dissent from the denial of an en banc rehearing, the City of New Haven threw out the results of promotional exams because the tests resulted in “too many qualified applicants of one race and not enough of another.” If Judge Sotomayor is nominated to the Supreme Court largely because of her race, her ruling in Ricci could trigger a debate on affirmative action that the Obama administration would probably prefer to avoid.
As for the last Supreme Court nominee to come from the trial court, that was President Bartlett’s 2000 selection of Roberto Mendoza (making Sotomayor a less trailblazing choice). http://en.wikipedia.org/wiki/Six_Meetings_Before_Lunch
I don’t believe Obama said those human qualities are “the most important” for a good judge to possess. What he did say is that for all their credentials, Roberts and Alito — in Obama’s view — lacked them to a sufficient degree.
(How he came to that conclusion, I have no idea.)
So he’s looking for a judge with the intellectual chops and those human qualities.
Much is being made of Obama’s remarks, but I think they’re simply telegraphing a rejection of the so-called “strict constructionist” approach in favor of a broader contemplation of the potential ramifications of judicial decisions on the lives of people.
To appropriate from Oliver Wendell Holmes’s “puke test,” Obama is looking for judges with a more sensitive gag reflex.
Far from being a fig leaf, Obama’s remarks are in fact very revealing.
And while it may be (suddenly) objectionable to some that a president is seeking a nominee who he expects to affirm his own policy preferences, this is a practice that dates to before Bushrod Washington saddled up his circuit riding pony.
When Judge Jose Cabranes came to Marquette University Law School a few years ago, he raved about what a good judge Sonia Sotomayor was. I am not surprised that the two of them found themselves on opposite sides in the Ricci case, because that is a very difficult case (difficult in the sense that there is not a clear answer and strong arguments can be made on either side — that’s how these things get to the Supreme Court). I understand why interest groups focus on a judge’s vote in single decision in order to justify their support or opposition to a potential appointee. But I don’t think that Judge Cabranes would say that his disagreement with Judge Sotomayer in Ricci means much more than that they disagreed on a hard case. He (and we) should evaluate whomever is appointed on the basis of their entire record.
I would like to know the last time a president nominated someone anticipated to be a roadblock to his own policy preferences? Souter himself disappointed many because his decisions did not end up aligning with political expectations. It would be difficult to understand why any President would nominate someone was was not expected to align with his or her own policy vision or legal philosophy. Likewise, members of an opposing party will mount as much of a fight as they believe is politically tenable against anyone that appears to present a politically adverse position. Note, however, the difficulty in aligning legal philosophy with political consequences (see, e.g., Justice Souter).
Qualifications therefore become an important issue. For instance, there was no question where Chief Justice Roberts aligned politically. However, he could not be readily characterized as an extremist and his qualifications, supported by his exceptional performance at his nomination hearing, made him difficult to assail.
(This whole discussion, of course, will lead to the tired judicial activism argument that one side nominates people who follow the construction of the law while the others nominate those who feel free to do as they please and can thus more readily support the policy of their choosing. I don’t find going down that road to be a very useful endeavor. Sen. Hatch speculated that “empathy” is just a buzzword for “judicial activism,” but in my view “judicial activist” is just a convenient and polarizing buzzword for “someone with whom I disagree” (I am painfully aware that many emphatically disagree with that characterization). In any case, that argument is too circular to positively advance any discussion regarding the outcome of a nomination.)
In the end I think it is clear that whomever is nominated will appear to be aligned with the President’s political policies. The question will be, do they appear qualified enough and moderate enough (no written record of extreme stances on hot button issues) to make opposition politically untenable. Elections do have consequences and this is one of them.
Oh, and since Sonia Sotomayor is taken, I pick Leah Ward Sears.
Jason,
Yes, Republican presidents will always nominate Republican judges and vice-versa. However, Democratic presidents used to nominate judges that would thrill contemporary conservatives (Felix Frankfurter, Hugo Black, Byron White). President Obama has now crystallized the results-driven judiciary that so many liberal legal scholars crave.
My problem with the “empathy” comment is that it sounds as if President Obama wants to turn the highest court in the land into a court of equity. How does one “empathetically” interpret the tax code? Furthermore, President Obama has given the impression that he believes certain classes of litigants (the poor, minorities, gays, the disabled, and the old) deserve extra-legal protections. Can you imagine the hue and cry if John McCain had said that he wants Supreme Court Justices “who have the heart and empathy to know what it’s like to be a big corporation facing employment discrimination lawsuits, to be a police officer in a crime riddled area, or to be a doctor sued for a frivolous malpractice claim.” It would be pretty easy to view that as conservative legal activism.
Furthermore, how do I as an advocate make my case to an ideal Obama judge? Law students are normally taught that judges look to case law and the text of statutes to decide cases. How is a practicing attorney supposed to divine a judge’s “empathy?” And if I am a defendant being sued by a member of the empathy class, do I have to clear extra legal hurdles to win my case?
While all judges have their policy preferences, the Obama standard makes it perfectly acceptable to leave the text in the name of compassionate judging. This makes the practice of law wildly unpredictable and unsophisticated. President Obama has defended this approach with the canard that “only five percent of [Supreme Court] cases are truly difficult.” Yet the amount of 9-0 decisions on the Supreme Court is closer to 40%, not 95%. I defer to Justice Alito’s line that good judges are for the little guy when the little guy is right, and for the big guy when he is right.
I don’t happen to find his empathy comment to be that meaningful or provide much insight we didn’t have before. I think it points towards a rejection of strict textualism and is merely a shorthand way of framing a complex legal philosophy debate. I read it as a liberal counterpoint to conservative employment of “activist”. They both act as machetes employed for their political vagary rather than scalpels used for legal precision. I don’t have much use for either of them. In the end, the more moderate and qualified the candidate is the easier the confirmation process will be.
Additionally, to respond to Professor O’Hear’s original post, I think it will be difficult to choose a nominee from beyond the ranks of the judiciary. A judicial history buoys a nominee’s qualifications while at the same time insulating them, somewhat, from politics. The absence of that history may make any political affiliation more glaring and in turn make the nominee more polarizing. I don’t think they would go that route with his first nomination but it could be possibility if/when later nominations occur. It seems to present a lot more risk. However, I believe President Clinton was enamored with the idea of nominating a non-judge and President G.W. Bush did attempt to nominate a non-judge, so it is certainly not out of the realm of possibility.