Diary

On The Supreme Court Opening

Cross-post to Daily Kos

Pres. Obama has again stated, as he did while campaigning, that he is looking for “empathy” as a key quality in any jurist he appoints to the United States Supreme Court. In my opinion, the key quality is experience, particularly the experience of finality acquired as a judge on a state high court.

“If you choose godly honest men to be captains of horse, honest men will follow them… I would rather have a plain russet-coated captain who knows what he fights for and loves what he knows than that which you call a gentleman and is nothing else”.—–Oliver Cromwell

“The life of the law is not logic: the life of the law is experience.”—Oliver Wendall Holmes, Jr, The Common Law

Pres. Obama has again stated, as he did while campaigning, that he is looking for “empathy” as a key quality in any jurist he appoints to the United States Supreme Court.  In my opinion, the key quality is experience, particularly the experience of finality acquired as a judge on a state high court.

Any judge appointed should deeply understand that the issues she passes on are not hypothetical.  Especially at the US Supreme Court, decisions effect the parties’ lives, their liberty and their property.  More broadly, these decisions help clarify important issues and make emerging issues more predictable across our entire nation.  None of this should be undertaken lightly or in the abstract.

However, I would also recommend that she refrain from excessive “empathy.”  The signal virtue of a judge must be impartiality.  There should never be an intimation that a judge is biased towards certain plaintiffs or defendants or that the record from the Court below and the briefs of the parties will receive anything but an impartial hearing.  At times, sympathetic parties may be in the legal (and the moral) wrong.

Supreme Court appointments are the great shibboleth of the American Right.  Pundits and “Talking Heads” will implore Republican Senators to prevent Pres. Obama appointing an “Activist Judge” to that holy of holies, The United States Supreme Court (“USSC”).  This will likely be a major and disruptive issue.

The Republican Party, at least the Grand Old Party of yore, offers a wonderfully effective, but seemingly abandoned, approach for the appointment of Justices to the USSC, who are both conscious of the human dimention of their decisions and respectful of the law.

The Republican Party once tended to appoint distinguished judges from state high courts to the USSC.  Theodore Roosevelt appointed Oliver Wendell Holmes, Jr., from the Massachusetts Supreme Judicial Court, to the USSC.   President Hoover appointed Benjamin Nathan Cardozo, from the New York Court of Appeals, to the USSC.  President Eisenhower appointed William J. Brennan, Jr. to the USSC from the Supreme Court of New Jersey.  Even Justice Suitor’s appointment reflected an attempt at this kind of appointment by Pres. G.H.W. Bush, although it was less clearly successful.

What each of these men brought to the table was not only a distinguished record as a judge on an influential appellate court, but a distinguished record on an influential appellate court that was final, at least as to the common law and constitution of that state.  Justice Jackson once said that it was vital with the USSC to always remember that it is supreme because it is final rather than final because it is supreme.  A state high court judge learns that lesson in finality in a way that the most erudite judge on a Federal Circuit Court cannot.

It is regrettable that the Republican Presidents of late have been appointing individuals to the Supreme Court more in the tradition of the late Justice William O. (“Wild Bill”) Douglas; brilliant legal scholars and mandarins dwelling in the rarefied air of policy and regulation, rather than jurists in the tradition of Oliver Wendell Holmes; Jr, brilliant judges deciding cases and adjudicating controversies in the arena of people and businesses’ conflicts and striving.

As the President has been a practicing lawyer with a distinguished academic background, he probably has strong instincts and trusted advisers (including Mrs. Obama, herself a highly regarded health care lawyer) who can tell who the best of the state high court judges are.  Additionally, I would recommend seeking the input not only of the American Bar Association, but also of both more ideologically–driven groups of lawyers across the political spectrum, especially including the Federalist Society, and a wide variety of associations of lawyers practicing in a wide variety of specialties, including but not limited to,  The American Trail Lawyers Association and the American Health Lawyer’s Association.

Those state high court judges whom these conflicting constituencies agree are brilliant and honest, but difficult, should be the prime candidates.  In short, you need to seek to appoint today’s Sir Thomas Moores and Thomas à Beckets to these positions.

The key consideration should be judicial temperament rather than any political or ideological litmus test.  Judges appointed to the USSC must understand our unique system which has both a written Constitution and a common law.   They must honor the “original intent of the Framers” while understanding that intent encompassed the widely divergent views of Madison and Hamilton and incorporated the reservations of the anti-Federalists, as well.