Please Pick A _____ For Supreme Court And Why It Annoys The Heck Out Of Me
Submitted by David Potts on Mon, 05/18/2009 - 6:48am.
Ever since Justice David Souter announced that he would be retiring, I've heard numerous people clamor to say that President Obama must pick a woman, Hispanic, or some other such group to fill the spot.
To be brutally honest, this annoys me endlessly. Here's an original thought, let's fill the Supreme Court vacancy with a good judge first and worry about all that other stuff later. It's downright stupid to go limiting the options before even considering who might have the best legal background.
If you want to pitch me your case for appointing a person of a certain gender or ethnicity to the court don't be so broad, I guarantee I won't listen or care about what you have to say. Instead tell me specifically who and why.
Look At it This Way...
Submitted by David Potts on Mon, 05/18/2009 - 9:27am.
It cheapens the value. If there's a big push for a ____ candidate and one actually is appointed, there will be people who brush the appointee off as just there to appease a group.
Look at Jennifer Brunner. She isn't running for Senate because she's a woman, she's running because she's qualified for the job. To vote for her only because someone wanted a woman Senator would unfairly dismissing all the things she's accomplished. Brunner is fully capable of holding her own ground against Fisher or Portman, to not let her do so would be a disservice.
yeah, but...(again)
Submitted by ols on Mon, 05/18/2009 - 6:16pm.
advance disclaimer - it's finals, so i only have like 5 intelligent sentences not relating to my field of law/degree, and here's my attempt to use them:
people are going to be able to brush off any candidate for whatever reason they want. i brush off half of what scalia says because i think the only reason he sits on the Supreme Court is because he was able to out-conservative the most extreme conservatives. he doesn't deserve his spot on the bench any more than sotormayor or koh, and in many ways he deserves it less. So, i don't think the issue should be whether people can brush off a candidate because of their social identities. The issue is whether bringing diversity to the Supreme Court is a good and important thing so that when choosing between two qually qualified candidates, one becomes a 'better' candidate by virtue of their social identities. And in addition to kjk's excellent comment below, I look at it this way:
If I have two candidates, each with law degrees, applying for a position at my hypothetical law firm and one has an undergrad background in science/engineering while the other has the english/history background that i have, who do i choose? i would choose the engineering/science guy because he's going to bring an outlook to the discussions that i just don't have no matter how many times i read science/engineering stories in the Economist. As kjk rightly points out, that's why it's good to have ____[choose anything other than white male]___ as the next Supreme Court Justice because seriously - the last thing we really need is one more person who looks at the world through the collective Scalia/Alito/Roberts lens. Just ask Ruth. (Bader-Ginsberg...)
Misguided
Submitted by kJk on Mon, 05/18/2009 - 11:29am.
You are misguided. As Justice Ginsburg mentioned in her Ledbetter dissent, the Supreme Court has no understanding of gender discrimination because it's 89% male. The Supreme Court has no understanding of race discrimination because it's 89% white and the one non-white member of the court hasn't opened his mouth to ask a single question in more than five years of oral arguments, was indeed appointed solely because he is black and conservative, and has serious personal issues. Last fall's issue of The Minority Lawyer had a very in-depth analysis of his time at Yale law, with numerous quotes from black Yale classmates of his.
In Parents Involved v. Seattle in 2007, C.J. Roberts glibly wrote, "the way to stop discriminating on the basis of race is to stop discriminating on the basis of race." This was to close an opinion by which the Court in part held unconstitutional a VOLUNTARY student assignment plan in Jefferson County (Louisville) schools, which sought to both racially and socioeconomically integrate. The fact that one group of people gets equal educational opportunity as 50 separate state constitutions mandate, and another does not, does not matter to Roberts, Alito, Scalia, and Thomas.
The Supreme Court is not a trial court. It's an appellate court with nine people. If eight of those people approach an analysis of constitutional rights from the same personal background, that does a gross disservice to justice and to the Constitution. All appellate panels should reflect as broad a cumulative background as possible, none more so than the final arbiter of constitutional issues.
Case-in-point: Ohio has a total of FOUR minority appellate court judges in twelve districts. Three are in the Eighth District, Cuyahoga County. The other is in Summit County. The Ohio Supreme Court has never had a single minority justice. I'm sure you think the world of the Ohio Supreme Court.
The potential nominee who would offend right-wingers most is Sonia Sotomayor. If they want to claim she's unqualified, they can start by explaining why George H.W. Bush appointed her to U.S. District Court for the Southern District of New York and why the Republican-controlled Senate confirmed her nomination by Bill Clinton to the 2d Circuit Court of Appeals.
Antonin Scalia was nominated in large part because he is Italian. He is the most prolific conservative justice in recent memory. Ruth Bader Ginsburg was nominated because she is a woman. She has been an excellent justice. Sandra Day O'Connor was nominated because she is a woman. She was a very good justice. More importantly, she brought a background of government experience with her, which well-served the Court and helped shape opinions. All of these people were only considered because they were qualified from a legal background. The "best judge" implies that legal knowledge is all that matters. Clerks write most of the justices' opinions, and the law is in books and on legal research databases for everyone to find. The common law has the same words for everyone. The meaning is not the same, however.
If someone is highly-qualified for the position and happens to be a woman or Latino/a, that absolutely should influence the appointment. If you disagree, I invite you to go to Logan Square or Humboldt Park in Chicago, the Bronx, or West 25th & Clark in Cleveland. The issues there are rather different from those in the tony DC suburbs where these justices live while the Court is in-session.
All of this written, I have no issues with any of the six on the supposed shortlist. My preference is for Obama and Biden to use their joint background in constitutional scholarship to nominate the candidate they believe will write the strongest legal opinions to knock Scalia off his pompous pulpit. For that reason, I had hoped for a Hillary Clinton nomination before she was appointed as SoS. Granholm and Napolitano both seem like they would love to tear into Scalia's opinions, but I am confident Sotomayor and others would, as well. For the next vacancy, Laurence Tribe and Kathleen Sullivan are among those I'd like to see.
Nice Post
Submitted by JP7 on Mon, 05/18/2009 - 12:37pm.
I enjoyed reading your post. It was rather insightful. However, I have a couple of questions that I need you to clear up.
First, why do you single out the fact that Thomas isn't a big questioner on the bench? You make it seem like a bad thing, but he does have a very good excuse for why he doesn't ask too many questions.
Second, and I might be wrong, but i think it's only been three years since he asked a question. I believe he asked a question during a 2006 Death Penalty case.
Feb. 22, 2006
Submitted by kJk on Wed, 05/20/2009 - 9:40am.
You're right on the last time Thomas asked a question. I looked it up after you asked. I should not have given a specific figure without checking and my disdain over the length led me to exaggerate.
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/04-1327.pdf
Go to page 43 of the transcript, and you will see the last time he opened his mouth during oral arguments. According to the Wall Street Journal's "When will Clarence Thomas ask a question watch," Thomas even had an opportunity in November 2007 to ask a question in a case involving the Equal Employment Opportunity Commission, of which he was Chairman for most of the 1980s. One might expect an eight-year Chairman of the EEOC to be the Court's point person for probing questions on such a case. I hope Thomas at least provided insight behind closed doors. Justices are supposed to draw on their backgrounds to inform not only their legal analysis, but also that of their colleagues.
I believe it is an awful thing if any of the nine Supreme Court justices generally refuses to ask questions during oral arguments. Thomas has provided two excuses in the past. The first, which he often makes publicly, is that oral arguments are about the solicitors' arguments and justices should merely listen. The second, which he has made privately (at least to a conservative friend of mine who used to work at a high-level federal office), is that by the time oral arguments come around, everyone has read the parties' briefs and know what the arguments are, anyway.
These two excuses conflict directly. Thomas can claim he wants to listen to the arguments or that he already knows the arguments, but he can't claim both. If he wants to listen to the arguments without asking any specific questions, that suggests he doesn't even read the briefs. Appellate judges ask questions during oral arguments because they seek answers on particular points for either clarity or rebuttal of the other side's best points in the briefs. I trust former appellate Judge O'Neill would endorse at least this much of my argument.
Judges who come to oral arguments unprepared or unwilling to ask questions are either intellectually lazy or have already made up their minds. I don't want to believe Justice Thomas is the former, but he makes me wonder sometimes. If judges have already made up their minds prior to arguments, it would behoove them to ask questions anyway, in an effort to extract answers favorable to their views that may sway another member of their panel. After all, appellate panels come down to votes.
No matter what Thomas holds as his real excuse, his claims are inconsistent and troubling. I will not disclose the former position of the person who told me the second excuse, but I assure you that he got that information directly from the Justice himself, whom he admires. My friend directly asked Thomas why he doesn't ask many questions because my friend wanted an answer to rebut critics like me.
Well-Stated KJK
Submitted by BuckeyeNation on Mon, 05/18/2009 - 11:47am.
One correction though, actually, there were two blacks who have served on the Ohio Supreme Court: Robert Duncan in the late 60s (a Repub appointed by Jim Rhodes and was then appointed as a federal judge), and Lloyd Brown, appointed by Governor Gilligan to replace Duncan, but then defeated when he ran to keep the seat.
But still, your point is an important one.
I'm a white male who thinks the SCOTUS (and the country) has suffered greatly because of the homogenous backgrounds of most of the justices. There are MANY Highly qualified women and minorities who should be appointed where the court could actually reflect the depth and breadth of America.
thank you for the correction
Submitted by kJk on Mon, 05/18/2009 - 12:29pm.
Thank you for your correction. I knew no minority justices had been elected and forgot that there had been appointments.
exactly
Submitted by mbrickner on Mon, 05/18/2009 - 12:00pm.
The trick is not to pick a nominee who is insulting. There are MANY qualified women and people of color out there. Please, not another Harriet Myers (shudder).
I believe SCOTUS should try to look like America
Submitted by madrigalmaniac on Thu, 05/21/2009 - 12:45am.
I used to be a Kroger store manager in the 1980's. In the 80's store managers looked like me, mostly white males. One day I went to the pharmacy to fill a prescription and saw two of my female African American employees buying hair care products. I teasingly asked why they did not buy from us, I'm sure we're cheaper. They said we can't. Kroger doesn't stock any hair care products for African American women. Why? Because all of the manager's, buyer's, and advertiser's looked like me.
I was given a lesson that day on hair straighteners for African American women and easing razor burn for African American men. The fact is we were not serving an important segment of our customer base. Assuming enough qualified candidates, the Supreme Court should look like America. Otherwise, we are not serving important segments of our society.
Fair enough, but...
I think the reason you hearing the pitches on the gender / race issue is because there's not actually a shortage of equally good, qualified, talented, intellectually honest candidates from all the various race, genders, and sexual orientations. You are looking at federal and state supreme court judges (in fairness, SDO wasn't even a state supreme court judge, but still qualified), professors, accomplished lawyers and judges. You can (or I could) probably name at least 150 equally qualified candidates from a wide range of societal identities - or perceived societal identities (I'm not going to sit and name them, but the point is that they're there). So why not take one of those 150 and promote someone who also adds a diverse voice (hopefully) to a rather homogenous group? Pick someone who reflects the actual legal workforce so that when we're wading through 100-page opinions and decisions, the judgments aren't so divorced from the reality most of us live in, and pick someone who's very presence will inspire young kids to want to be lawyers and judges when they grow up. That's what SDO's first female appointment did for me & that turned out pretty well, if I do say so myself.
I would personally love to see Harold Koh on the bench. It won't happen - he's had a hard enough time lately with slams by people who aren't smart enough to understand his transnational theories, but feel entitled to give their two cent interpretation about what he's saying. But, he'd be fantastic.