May 12, 2009
The minute Justice David Souter announced his imminent retirement from the Supreme Court, the media began to engage in rampant speculation about who President Obama would nominate and what criteria would guide his decision. Unfortunately, most of the speculation centered on wrong-headed criteria like race, gender, political leaning, and vague notions of empathetic experience.
Questions abound. How will the President "diversify" the bench? Will he nominate a member of a racial minority? Will he nominate a woman? Will he nominate someone from a unique religious background? Senator Arlen Specter told NBC that he hopes the President will "choose someone with diversity." "Women are underrepresented on the court," he declared. "We don't have an Hispanic. African-Americans are underrepresented." There is intense pressure on the President to satisfy this "diversity quota," regardless of whether a candidate is the most qualified for the post.
A new element has also been introduced into the discussion of President Obama's upcoming nomination: empathy. Mr. Obama stated that he plans to nominate a candidate who possesses "empathy and understanding" and "who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives." This rather vague quote is elucidated by President Obama's previous speech to a Planned Parenthood conference in 2007, in which he maintained, "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom [That's code for "My nominee will support abortion on demand."]; the empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."
The criteria identified by Mr. Obama provide a poor foundation on which to base the nomination of a Supreme Court Justice. Race, gender, and religious background should not determine a person's qualifications to sit on the bench of the highest court in the land. Emphasizing these criteria will only perpetuate the racism, sexism, and religious discrimination he purportedly decries.
Injecting race, gender, and religious background into the judicial selection process amounts to little more than "pandering" to voter groups. Janet Murguia, President of La Raza (a Hispanic-American interest group), acknowledges as much: "There are high expectations because of the turnout we saw in the Latino community. I think [picking a Hispanic] would go a long way to helping the Latino community feel they were recognized in terms of that support." Supreme Court Justices ought not to be used as a medium of exchange to purchase the votes of special interest groups.
The proper criteria for choosing a Supreme Court Justice are largely ignored by the chattering class; hence, they are often poorly understood by many Americans.
Character
The first criterion involves the candidate's character. Do they have a history of honesty and integrity? Are they incorruptible, unpurchaseable? Can they resist a bribe or attempts by litigants or third parties to exert undue influence? Do they crave the approval of the crowd? Can they handle criticism by the media? Will their head be turned by adulation or their ego wounded by scorn? Are they secure in themselves or do they require validation by others? Do they have the strength of character to subordinate their own beliefs or desires for a particular outcome for the one required by the law? Can they be evenhanded to the litigants that come before them? Can they say "yes" to the poor and "no" to the rich if the law requires it? Conversely, can they say "no" to the poor and "yes" to the rich when the law demands it?
