Wednesday, February 24, 2016

What a Constitutional Scholar Looks for in a Supreme Court Nominee

One of the things I have always admired about President Obama is his ability to focus on his "North Star," regardless of the shenanigans going on around him. Here is how Michelle Obama described that a few years ago:
Here's the thing about my husband: even in the toughest moments, when it seems like all is lost, Barack Obama never loses sight of the end goal. He never lets himself get distracted by the chatter and the noise, even if it comes from some of his best supporters. He just keeps moving forward.
And in those moments when we're all sweating it, when we're worried that the bill won't pass or the negotiation will fall through, Barack always reminds me that we're playing a long game here. He reminds me that change is slow — it doesn't happen overnight.
If we keep showing up, if we keep fighting the good fight and doing what we know is right, then eventually we will get there.
We always have.
Notice that she didn't say that we automatically "get there." It is predicated on showing up, fighting the good fight and doing what we know is right.

And so today, while the Republicans continue to take unprecedented steps to delegitimize his presidency by refusing to even hold hearings on his Supreme Court nominee, President Obama isn't letting himself be controlled by getting caught up in reacting to the noise. Instead, this Constitutional scholar is doing things like writing a post for SCOTUSblog on what he'll be looking for in his choice for a Supreme Court Justice. Let's take a look at what he said.

The President laid out three qualities that he will focus on.

1. A sterling record
First and foremost, the person I appoint will be eminently qualified. He or she will have an independent mind, rigorous intellect, impeccable credentials, and a record of excellence and integrity. I’m looking for a mastery of the law, with an ability to hone in on the key issues before the Court, and provide clear answers to complex legal questions.
2. A deep respect for the judiciary's role
Second, the person I appoint will be someone who recognizes the limits of the judiciary’s role; who understands that a judge’s job is to interpret the law, not make the law. I seek judges who approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice, a respect for precedent, and a determination to faithfully apply the law to the facts at hand.
3. An understanding of the way the world really works
But I’m also mindful that there will be cases that reach the Supreme Court in which the law is not clear. There will be cases in which a judge’s analysis necessarily will be shaped by his or her own perspective, ethics, and judgment. That’s why the third quality I seek in a judge is a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook. It’s the kind of life experience earned outside the classroom and the courtroom; experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing times. That, I believe, is an essential element for arriving at just decisions and fair outcomes.
One of the things that is interesting to note is how consistent these principles have been for this President. Back when he was still a U.S. Senator, it was John Roberts failure on #3 that led him to vote against that nomination.
The problem I face -- a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts -- is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases -- what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.
In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision... - in those difficult cases, the critical ingredient is supplied by what is in the judge's heart.
The analogy John Roberts so often used for the role of a Supreme Court Justice as merely a baseball referee who calls strikes and balls was not an adequate response for then-Senator Obama.

Rather than base his selection on litmus tests or ideological calculations, what President Obama has described is his pragmatic approach to selecting a nominee. And rather than getting distracted by all the "chatter and noise," that is the North Star that will guide him. It also happens to be a pretty good strategy.

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