Dems on the Supreme Court
So an underplayed aspect of this campaign has been how the Democratic candidates would differently select the Supreme Court. On NPR's debate, Senator Lieberman pointed to Justice Souter as a model. Congressman Kucinich plugged Justice Ginsburg. I've gotten a couple pings asking what the right answer is.
Hard question for me. Of course neither Ginsburg nor Souter were on the correct side (or the right side) of Eldred, but I certainly think Justice Souter is a model justice -- serious, hard working, unburdened by ideology, prepared. I never quite get the principle that guides Justice Ginsburg's choice between activism and not, or principle and not, so I'm waiting to see the genius in that selection by President Clinton.
Justice Breyer of course wrote a brilliant dissent in Eldred -- brilliant, though not effective. He was proud of the decision's embrace of economics as the standard by which the Sonny Bono Act was judged. But while I'm a fan of the result, I've been too deeply affected (scarred?) by the originalism/textaulism/fidelity theories of Scalia to be enamored of that method.
In my view, perhaps the best sitting justice is a Republican appointee -- Stevens. And if candidates are looking for what makes the best the best, then it is certainly his judges' judge-like character. There's no simple line that predicts Justice Stevens' result -- certainly not a political line. And if there is any quality this Court needs, it is that -- following a line that does not seem a political line.
The most impressive judges not sitting on the Supreme Court are also, um, Republicans. (What party am I again?) Judge Kozinski is a great judge -- too young when appointed, but someone who has matured brilliantly in the job. And while his views about how to the interpret the constitution make me cringe, history will record the greatest judge of our time as Judge Posner. But I doubt that this is the time that a President from either party will pick greatness as the reason to select a Justice.
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Comments (15)
Would it be unreasonable to make the conjecture that lawyers might, in 20 or 30 years time, be addressing Justice Lessig?
Heh, I was thinking about the same question the other day and came to essentially the same conclusion. (Although I don't know enough about Justice Stevens.)
Analogous to Cates's story (below), Kozinski's explanation of how judges should interpret the law is very tempting.
"Unburdened by ideology?" Are impartiality and ideology mutually exclusive?
Justice Lessig? Maybe ... if Howard Dean is elected :-)
[Joke! Joke?]
I'm sure Lessig will humbly protest the greatness of Kozinski and Posner. To which I have but two words in reply: Clarence Thomas
[That is, appointment to the Supreme Court is a matter of politics more than greatness]
"And if there is any quality this Court needs, it is that — following a line that does not seem a political line."
Professor,
Surely you don't mean that it's fine for a judge to be a political idealogue so long as (s)he doesn't 'seem' it.
I'm having trouble with all those who called for a de-politicalization of the Supreme Court after Bush v. Gore, especially when they try their damndest to politicize every issue.
-kd
To clarify, 'all those' was not meant to apply to you, Professor. I find your candor with respect to the brilliance of judges on the other side of the political spectrum refreshing.
-kd
Didn't the HLR publish a study finding that Souter and Ginsburg voted together more often than any other pair in the most recent term?
Which is to say, at least as far as the most recent term: how do you level the criticism of Ginsburg that you do, while not leveling it at Souter?
first, I have few rules on this blog, but here's one: no silly speculations about me. I am not going to be on the Supreme Court, or any Court, and I therefore practice the free speech that that knowlege permits me.
second, karl, a necessary condition, not sufficient. AT THE VERY LEAST, the court should not seem political. The greatest courts have understood this.
third, thomas: yea, I'm sure they're similar in votes (though the HLR statistics are misleading in aggregate since the majority of cases are unanimous): but I'm talking about a difference in purpose. There is a seriousness of mission to Souter which I admire. Patience and serious. Justice Ginsburg seems less patient to understand (and always has) -- the last thing one needs in a justice. But again, it's early in her career. We'll see. I'm eager to be proven wrong.
As an amateur SCOTUS watcher (IANAL), I have always been impressed in Souter's willingness to consider what is presented not from an ideological vantage, but from a long term vantage of setting precedent that will stand the test of time and hindsight.
Several of the other Justices (Scalia) seem to be so quick to decide, I often wonder if they haven't made up their mind as the cases are still being presented.
One of these days, I'd like to hear a "senior white house source" of a Democratic WH leak Alan Dershowitz as a justice.
He's not my choice (too old now, for one), but watching Orrin Hatch's head explode would be prize.
At one time I remember former Senator George Mitchell's name being bandied about as a possibility, and the aforementioned Orrin Hatch's name has also come up. Talk about seeming political.
But really, is it any surprise that with the nomination/confirmation process we have that the Justice candidates have increasingly been looked at in partisan terms? Perhaps it's just a reflection of the increasingly strident partisanship of the nation as a whole. I think Prof. Lessig's final sentence sums it up quite well.
Lawrence Tribe, respected for his wisdom and clear thought, even by his opponents.
*sigh* No chance, though.
Stevens definitely qualifies as the best of the current Court.
Of course, Bush has Scalia as his model, and Scalia's basically intellectually dishonest. His arguments routinely ignore reality, logic, and internal consistency.
(Classic example of all three: Bush v. Gore.)
His textualism is severly blinkered, since he obviously never bothered to read the Ninth Amendment, which quite clearly declares that textualism and strict construction are invalid when it comes to the rights of the people. (And original intent agrees with that, too.)
This is precisely why I consider most right-wing "strict constructionists" or followers of "original intent" either corrupt or stupid: If you're an intellectually honest strict constructionist (or follower of original intent), you must accept the plain meaning of the Ninth Amendment, or the intent of those who wrote it -- which is that unlisted personal rights must receive *just as much* protection as listed personal rights. Of course, most of these people, such as Scalia and Rehnquist, have never found an unenumerated right they believe in.
*sigh* Now that's a litmus test I'd support applying to judicial candidates: "Name a right which you believe is covered by the Ninth Amendment, any right. Can't come up with one? Goodbye, you're disqualified."
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