SCOTUS Nominees

There's tons of speculation about who Obama will nominate to replace Justice Stevens on the court. I'm really not that interested in the guessing nor do I know enough about the candidates to be able to evaluate any of them. There are a few things I hope (and assume) Obama considers.

The biggest issue seems to be how far to the left is Obama willing to go with a nominee. Obama tends to be a centrist (really) and Sotomayor was a center left nominee. It's too early to establish her record (and the biggest cases this term haven't been decided yet), but this article is pretty good on her.

So Obama will probably tend not to go too radical. Current wisdom is the Democrats will lose seats in Congress in the November elections. If Obama does get another nominee, this will probably be the easiest the confirmation process will be. If he's going to go for someone more progressive, now would be the time to do it.

Stevens has been at the left of the court. There seems to be some debate (perhaps just by Stevens himself) that he's remained the same and the court has moved to the right during his term. There's no doubt that the court has moved right. If the court is to remain similar, it needs a strongly left Justice to replace Stevens. That's not necessarily a good rationale for a nominee and it's proven difficult to know how a Justice will rule after confirmed. Stevens was nominated by Republican Ford who wasn't expecting him to be the left end of the court. Thomas, the far right of the court, actually in some ways moved the court to the left because he was so unwilling to compromise he drove O'Connor's vote left in some cases.

I do think the court should be composed of a few strongly left and strongly right Justices. I have no problem with Scalia being on the court. He's clearly qualified and represents a popular judicial philosophy (even if I don't subscribe to it). Thomas is further to the right of Scalia and i'm not so sure about him but ok. But now we also have Alito and Roberts and the very conservative Kennedy is the swing vote. I'd really rather see 3-5 centrists and 2-3 Justices at each extreme. Elections do have consequences and for all those progressive Hilary supporters who were going to vote for McCain when she lost the nomination, this is (one of) the reason(s) that was a dumb idea.

Still a court where Ginsberg and Breyer are the left and Scalia, Thomas, Alito and Roberts are the right with Sotomayor and Kennedy as the centrists doesn't seem that balanced. Rebalancing will probably have to wait until Scalia and Kennedy leave but Ginsberg is probably the next Justice to be replaced.

Both sides in the Senate are saying they want a good Justice who will "interpret the law and not make the law". The fact that both sides are saying this should point out how meaningless the phrase is. The cases that make it to the Supreme Court are by definition difficult and often cover areas where the law is vague or conflicting. A philosophy of how you resolve such disputes is necessary and reasonable people can disagree.

Still, until there's a specific nominee, the debate will be pretty tame. Also, Steven's doesn't resign until the current term ends which is probably the end of the June. Obama should probably wait until close to then to nominate someone as the hearings can't happen before Steven's actually resigns. Extending the period of public debate during the background checks would only make the process uglier. Give reasonable time for evaluation and no more. Here's the timeline from Sotomayor's nomination.

A lot of conservatives complain about the makeup of the court, but six of the current Justices were nominated by Republicans (including Stevens). Also the lower courts are strongly dominated by Republican appointments. Maybe they are still trying to make up for the Warren court, but that was a long time ago already.

There's a lot of speculation now about whether Republicans will filibuster the nominee or rule out filibustering. In the history of the court there has been one nominee filibustered. It was in 1968 when Johnson nominated current Justice Abe Fortas to be Chief Justice replacing Earl Warren. The details are here. I think the filibuster should be permissible but used only in exceptional circumstances. Now that filibustering is more common, the Senate has to figure out how to deal with it in non-exceptional cases.

I'm not looking forward to the confirmation hearings. They've become pretty boring and repetitive. Every Republican wanted to be heard asking Sotomayor about the "wise latina" quote. Every Democrat just want to say how good she was. I think it was Ginsberg who started the idea that nominees shouldn't answer questions about topics that might come before the court. Nominees now will only answer general questions about law at a layman's level and saying things like "calling balls and strikes". They're nominated for life and while impeachment is possible, it's extremely rare. This is the only time to evaluate them and somehow we think we can't even do that. Is there any Supreme Court nominee who hasn't thought about the Roe v. Wade decision? You can ask anyone on the street and they'll probably have an opinion, but when appointing someone into a position to do something about it we can't ask their opinion.

Chief Justice Roberts a few months ago was asked by law students what questions could be asked and said that asking how they write opinions would be an interesting question. I'm not convinced. If I ever have the opportunity to ask him one it will be why is not all right to ask a nominee about relevant recent cases. Accepting that each case has it's own specifics and that actual pending cases should probably be off limits, why not be able to ask about Roe or Kelo or Bush v. Gore and not just Brown v Board of Education? And if not how they would have ruled, how they would have approached their decision process in more than abstract terms (I'd first look at the facts of the case then I'd look to precedent....). Wouldn't it be nice if a nominee used the hearing to actually talk about interesting stuff?