Supreme Court Adjudication and the Qualifications of Supreme Court Nominees

July 2, 2009

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Excerpts from the report

"The reality is that choice and discretion are unavoidable features of Supreme Court adjudication and the Court frequently 'makes law,' subject to the constraints of the judicial process. In this process, empathy and life experience are valuable assets in making the judgments that Supreme Court adjudication requires, provided they are made within the limits of these constraints."

"As this paper shows, none of the competing interpretive philosophies can exclude the exercise of judgment, choice and discretion that is required to answer the most difficult questions of constitutional and statutory interpretation which frequently confront and sometimes divide the Court."

"Too frequently during recent debates about Supreme Court nominations myths and slogans have dominated public discourse. The investigation of the nominee and her qualifications should be conducted with an awareness of the realities of Supreme Court adjudication. Supreme Court Justices must have the learning, intelligence and good judgment to exercise the discretion and choice they will inevitably be required to exercise in those hard cases of constitutional and statutory interpretation that confront the Court and the outcomes of which profoundly affect the lives of individual persons. Part of that good judgment are qualities of empathy and the benefits of experience which enable the Justices to recognize those features of the cases before them that are especially relevant to the sound interpretation and application of the Constitution’s and statutes’ commands, principles and protections. The diverse experiences that a nominee may bring to the Court is a valuable asset which helps the other Justices challenge their own personal preconceptions, intuitions, unconscious biases, and blind spots which inevitably affect their perspective and their best judgment. At the same time, the nominee must have the character, integrity and commitment to the rule of law to act within the constraints of the judicial process. The Judiciary Committee’s investigation and hearings should explore these qualities by examining the nominee’s full record as reflected in her seventeen years as a trial and appellate judge, as well as her experience in law enforcement, private law practice, and communal activities. Such a process would best fulfill the Senate’s Advice and Consent function, and at the same time educate the American people about the role of the Court in our democracy."

About the Author

Sidney S. Rosdeitcher is Senior Policy Advisor to the Brennan Center for Justice and is also of counsel to Paul, Weiss, Rifkind, Wharton & Garrison LLP where he was a litigation partner until his retirement at the end of 2004. He previously served as a lawyer in the Office of Legal Counsel at the Department of Justice and as an assistant to Commissioner Philip Elman of the Federal Trade Commission. He is currently Chair of the Task Force on National Security and the Rule of Law of the New York City Bar Association and a member of the Board of Directors of the Lawyers Committee for Civil Rights Under Law. He teaches a seminar in Constitutional Law at Columbia College. He received his LL.B. from Harvard Law School (1961) where he was Articles Editor of the Harvard Law Review, and his A.B. from Columbia College (1958).