Fixing Justice—Continued
"Suppose there is a vacancy on the Supreme Court during the next president's term, what should he or she consider when selecting a nominee? And are the"
Spring 2008, with the campaign season well under way, the Brennan Center for Justice posed this questions to a select group of writers, thinkers and policy makers. This is the advice they would offer to the incoming president, should a seat on the Court open up.
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Benjamin Wittes | Mario Cuomo | Frederick A.O.
Schwarz, Jr.
Brad Berenson | John Sexton
Benjamin Wittes
Brookings Institution Fellow and Research Director in Public Law, Governance Studies; New Republic online columnist; author, Law and the Long War: The Future of Justice in the Age of Terror
In a politically polarized environment, the next president has a problem: Satisfying his or her political base almost necessarily means generating a major political fight; avoiding a major political fight probably means disappointing a base that will be critical to reelection. Add in the need, real and perceived, for diversity in Supreme Court appointments, and you've got a needle to thread. Who exactly is the Hispanic woman who will satisfy either party's base without inflaming the opposition?
In the short term, there is no way to navigate this terrain.
The next few nominations are going to be ugly—and maybe very
ugly. A Democratic president will feel the brunt of Republican anger over the
treatment of John Roberts and Samuel Alito—particularly the
latter—and many lower-court nominees, plus the emergence of
conservative interest groups that are now as organized as the liberal interest
groups that mobilized in the 1980s on judicial nominations. A Republican
president, by contrast, will fight against intense resistance from Democrats
and interest groups keen to prevent the confirmation of a fifth solid
conservative—an event that would have big implications for
the direction of the court for the next decade or more. In the short-term,
something has to give. So the question is not how to prevent short-term
conflict, but how to diminish long-term conflict.
In my view, at least, the answer here is to build up the court's center—that is for the president (of either party) to stick his or her thumb solidly in the eye of his or her political base and, once there, twist it a bit. A Democratic president should nominate a person of the highest quality and most conservative bent within the Democratic world; a Republican president should nominate that person's mirror image. The message should be reconciliation with the opposing party through moderate excellence. And having done this once and taken a hit from the base for it, the president should then proceed to do it again—and again after that. Indeed, for this strategy to work, it has to be a sustained set of actions over time, not a single a nomination. It has to be done often enough that other party comes to understand it not as weakness (as Republicans understood Clinton's often moderate nominations) but leadership and strength.
There was a time—and it wasn't that long ago—when the liberals on the courts included Republican appointees and the conservatives included Democratic appointees. The advent of a increasingly partisan ideological alignments on many federal courts is a new development, and a terribly destructive one. The next president should quite deliberately and systematically begin attempting to undo it—not by "balancing" but by rejecting the premise. It's a profoundly difficult project. And the longer we go without taking it on, the harder it gets.
Gov. Mario Cuomo
Fmr. Gov., New York, author, Why Lincoln Matters: Today More than Ever
All the issues currently before the Court are of great interest to me now. That's not unusual, given that the Court selects virtually all the cases it will review. What I believe the President should make his most important criterion is what most presidents regard as unrealistic...the candidate should remain open minded on all the questions presented and arrive at a conclusion only after arguments and deliberations. Most presidents prefer strong indications from a candidate that they will vote the way the President hopes they will vote before the President selects that candidate.
Emily
Bazelon
Senior Editor of Legal Affairs, Slate
Cass Sunstein points out, the center of today's
Roberts Court is like the conservative wing of previous courts—the Warren
Court and also much of the Rehnquist Court. As
the court has shifted to the right, no one Justice has emerged to
serve as a counterpoint to Justice Antonin Scalia, with his rhetorical force
and unshakable certainty. While the court's four liberal and moderate Justices are effective in many ways, the institution lacks leadership on their
side of the spectrum. Not much lefty lion roar. If the next president is a Democrat, he or she should try to
fill this gap. In all likelihood, the best place to look for a stellar
liberal justice may well be outside the traditional hunting ground, the
federal
appeals courts.
Bill Clinton favored moderate appointees and left vacancies on the courts; and because of the many judges that President Bush has put in place, the nation's circuit courts are dominated by Republican-appointed judges while the Democratic appointees often represent centrist positions, when their careers are viewed as a whole. The state courts are an alternate and potentially more promising place to look for the next Supreme Court justice. Or the next president could appoint a politician, in the Earl Warren mode, or look to the country's law schools. The goal should be to find someone who can speak with a roar that matches Scalia's, and who also has an overarching vision for the court to answer Scalia's originalism. Just as important will be the skill of forging alliances—the crucial getting to five.
Frederick A.O.
Schwarz, Jr.
Senior Counsel, Brennan Center for Justice; author, Unchecked and Unbalanced: Presidential Power in a Time of Terror
It's important that the President break with the recent
tradition of selecting only sitting judges to fill positions on the Supreme
Court. He/She should also look outside of this narrow field and select some
candidates with different backgrounds and life experience.
Look at the court that decided Brown v. Board of Education for instance. I'm not certain a single one of those justices was a judge before being selected to the Supreme Court—you had a Senator, a former Attorney General, a former governor, a law professor and the like.
And certainly we would want whomever is nominated to show they value the same ideals that we do: restraints on power, a system of checks & balances, and the preservation of a vibrant democracy.
Brad Berenson
Former Supreme Court editor of the Harvard Law Review, law clerk to Justice Anthony Kennedy, and Associate White House Counsel to President George W. Bush; partner at Sidley Austin LLP
The qualifications for a Supreme Court nominee are: quality, integrity, and a commitment to judicial restraint. None of these is a partisan criterion. Neither party has a monopoly on candidates who possess all three. Any nominee who possesses these traits should be swiftly confirmed.
Though not controversial, the first two characteristics are exceedingly important. Being a Supreme Court Justice is the legal and intellectual equivalent of being a professional athlete. Legal issues before the modern Court are often exceedingly complex, and there may well be a greater premium on intellectual ability at the Supreme Court today than at any other time in our history. A first-rate legal mind and deep familiarity with principles of federal law and statutory and constitutional interpretation are baseline requirements for any nominee. As are integrity and character.
The third criterion—a commitment to judicial restraint—is more controversial, because it is sometimes mistaken for an ideological criterion. Properly understood, it isn't. Judicial restraint is a process-oriented approach to jurisprudence that emphasizes deference to the political branches of government. It is based on the notion that policymaking discretion should remain in the hands of the peoples' elected representatives in the White House and Congress to the maximum extent possible consistent with the Constitution. It frowns on result-driven jurisprudence of any type, or on judicial aggressiveness or "creativity." Because courts and judges are largely unaccountable to the citizenry, their legitimacy rests on remaining tightly bound to their limited role in our system of government, and retaining a concomitant attitude of humility and deference to the political branches, who bear primary responsibility for guiding the domestic and foreign policy of the nation.
This neutral philosophy of judging will not produce results that are consistently conservative or liberal in conventional political or policy terms. And it has been shared and practiced by both liberal and conservative Justices appointed by both Democrats and Republicans. The justices most worthy of our admiration—whether Felix Frankfurter (appointed by FDR) or our current Chief Justice, John Roberts (appointed by George W. Bush)—are those who understand and adhere to this self-abnegating view of the limited role of the judiciary in our system of government.
There are a number of candidates in both political parties who possess the necessary skills, intellect, temperament, and character. But the number is smaller—on both sides—when one applies the judicial restraint filter. Bearing in mind that I am more familiar with the Republican farm team than the Democratic one, here is a non-exhaustive list of some people in the right age cohort to keep an eye on in 2009 and beyond:
Republicans: Judge Jeffrey Sutton of the Sixth Circuit in Ohio; Judge Steve Colloton of the Eighth Circuit in Iowa; Professor Jack Goldsmith of Harvard Law School; Judge Brett Kavanaugh of the D.C. Circuit; Judge Sandra Ikuta of the Ninth Circuit; Judge Neal Gorsuch of the Tenth Circuit in Colorado; and Peter Keisler, former Acting Attorney General and pending nominee to the D.C. Circuit. (Full disclosure, Keisler recently rejoined my law firm as a partner.)
Democrats: Judge Merrick Garland of the D.C. Circuit; Dean Elena Kagan of Harvard Law School; Prof. Neal Katyal of Georgetown University Law Center; Jamie Gorelick, former Deputy Attorney General under President Clinton.
John Sexton
President New York University; Benjamin Butler Professor of Law and NYU Law School's Dean Emeritus
Each Justice should be a universally respected student of law who is familiar with the channels of legal discourse and can consider legal questions in a nuanced way.
The Court demands people of integrity who are comfortable taking and maintaining positions as well as listening to others, with an open mind.
There are a number of controversial, fundamental issues on which the current court is closely divided. I would counsel the President first to have a list of these issues and avoid putting a person on the Court who is likely to approach any of these matters in a way that would upset the stability of the system or put the Court in a postion in which it functioned as a political, rather than a judicial, instrument.
The Casey opinion provides a good instance in which three Justices clearly understood the important, stabilizing purpose precedent plays on the Court. In Casey, the court was invited to overturn Roe v. Wade; in an opinon jointly authored by O’Connor, Kennedy, and Souter, the Justices articulated a position embedded in precedent and the lives of individuals of the nation. The Justices who authored and signed this opinion understood how divisive it would be to upset long established expectations in the most personal of rights domains. They knew that if there were any case to have stare decisis, this would be it.
The next president would be well advised to avoid nominees who would politicize the Court by disregarding well-settled precedents. So I would urge the president to probe the genuineness of each would-be nominee’s commitment to judicial integrity and precedent. I would counsel the President to focus on potential appointees' interest in maintaining the gravitas and the stature of the court, which in turn depends on the court’s capacity to stay within a channel of expectation.