Queen Supreme

Travis says: When Supreme Court Justice David Souter announced he was leaving the bench, President Barack Obama listed the attributes he desires in Souter’s successor:

"I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people's lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded and who brings a thoughtful understanding of how to apply them in our time."

And now we have our president’s first choice: Sonia Sotomayor. Sotomayor, should she achieve confirmation, would likely be a more “liberal” jurist than Chief Justice Roberts or Justice Alito. In Ricci vs. DeStafano she ruled against a group of white and Latino firefighters in New Haven who argued they were discriminated against when the results of a promotion exam were set aside after no African-Americans met the promotion threshold. This decision worries some business groups, though, as always, the facts of the case are less cut-and-dried than a one sentence summary.

But Sotomayor also has an independent streak. In re Air Crash Off Long Island, NY on July 17, 1996, Sotomayor dissented from a majority decision to interpret the Death on the High Seas Act to provide “a more generous remedial scheme” for victims’ families. While personally sympathetic to those who lost their loved ones, Sotomayor noted that “[t]he appropriate remedial scheme for deaths occurring off the United States coast is clearly a legislative policy choice, which should not be made by the courts.”
 
In some ways, Sotomayor seems a lot like President Obama, a person of minority ethnicity with a compelling personal story who was a high achiever at school and has both liberal and pragmatic tendencies. I generally like what little I know about her, and I imagine you are not particularly keen on her nomination; not much to debate there. But I would like your take on three more general questions related to the nomination:

1) Is empathy, or even life experience, a relevant qualification for appointment to the Supreme Court?

2) Was it discriminatory for Obama to only short-list women?

3) Should Republicans attempt to filibuster this nomination?

Here are my snap judgments:

1) I think empathy and life experience are relevant, along with all the standard tropes like dedication to the “rule of law” and understanding “appropriate limits of the judicial role.” If anything, I might argue that Sotomayor’s particular academic biography -- elite Catholic high school, Ivy League college and law school -- is too consistent with the typical court nominee. How many justices went to public schools?

2) Roughly half of all Americans are women, more than half of law school graduates are women, how can the Supreme Court only have one woman? I would always prefer a competent white man to an incompetent woman or male of color, but the notion of “pick the BEST candidate, no matter what” is simply a canard. There are many, many Americans who would make excellent Supreme Court justices. Not all of them are men (most of them are not lawyers or judges). Given a surplus of talent, having a Court that is more representative of the governed seems a reasonable objective.

3) Republican presidents generally appoint conservatives to key posts, Democratic presidents generally appoint liberals to key posts. Should any president attempt to appoint someone that was truly unqualified, I would be in favor of a filibuster. That said, it was wrong for Democrats to attempt to filibuster the nomination of Justice Alito, and, unless some skeleton-in-the-closet comes out during confirmation hearings, Republicans should not filibuster Sotomayor’s nomination. A president deserves some discretion and an up or down vote on his or her nominees. Any principled conservative (or liberal) should have the right to vote against Sotomayor on her record, but that vote should be on confirmation, not on cloture.

Finally, President Clinton appointed Justices Ginsburg and Breyer with consent of a Democratic Senate, President Bush II had a Republican majority to work with during the nominations of Chief Justice Roberts and Justice Alito, and now President Obama has another Democratic majority. In the new hyper-partisan environment, what is going to happen the next time a Republican president nominates a justice to be confirmed by a Democratic Senate (or vice versa), especially if the ideology of the departing justice and the sitting president are divergent?

Jim says: First, you have left me with a dilemma. I can ignore your reference to Mr. Obama as “our president” or I can comment on it. Either way leaves me in a bad light. If silent, a reader would assume I agree with it, which I do not. Let me just say, ever since Joseph Kennedy bought the presidency for his son when I was 10 years old, I have never considered the opposition winner to be “my president.” That makes as much sense to me as going to a ball game where your team loses and leaving with the expectation you are now to adopt the winning team as your team. Not going to happen here.

For me, opposition presidents are merely a placeholder to be barely tolerated until they are gone. All that are interested are reading the “tea leaves” on the Sotomayor nomination. A Supreme Court nomination is like watching a car crash—it is horrible but one can’t help watching it. I remember when Obama was candidate Obama he said he would not have nominated Clarence Thomas because he thought he lacked the intellectual capacity. However, he has just nominated a woman who spent eight years in private practice at the boutique New York firm, Pavia & Harcourt, specializing in designer handbag knockoff lawsuits for their client, Fendi.

Of course, in the ultimate irony, George Herbert Walker Bush is the president that first put her on the federal bench—and also thought he was putting the “conservative” Souter on the Court. These facts just prove one cannot reliably pick the future political leanings of a Supreme Court judge.

Outside of a college level literature course, I am only aware of two documents that are constantly “interpreted” for us by others: the Bible and the U.S. Constitution. Those doing the “interpretation” or those seeking interpretations seem to have two common threads that are consistent across both documents: (a) they want an interpretation that allows them to skirt the general meaning of these important documents or (b) they want an interpretation that allows them to criticize or affect others’ behavior.

President Obama’s statement, which you quoted above, has been presented as if the statement was thought of first and then Judge Sotomayor was found. I am highly skeptical of that order. I suspect Judge Sotomayor was found, for political reasons, and then the statement was written to match her qualifications, a statement that clearly is biased in favor of individuals over any large entity (such as business).

But on to your points:

1) I find the idea that empathy or life experiences being elevated to the qualifications for a position on the Supreme Court to be completely frightening, ludicrous, and intended to turn the purpose of the Supreme Court on its head. Statutes and emblems depicting justice in the United States are not of Jesus Christ with little children and lambs gathered around him (certainly an empathetic vision) but of a Grecian goddess, blindfolded and holding a balance in one hand. Justice is supposed to be blind, not empathetic. In fact, anyone who promotes empathy in the court system has not read or does not take seriously the last three words of the Pledge of Allegiance: “…justice for all” does not mean throw your sob story on the sympathy of the court. The Legislative and the Executive branches are the only places where empathy must reside.

2) A number of years ago, the New York Philharmonic Orchestra instituted a new policy when auditioning musicians—they had the musician sit behind an opaque curtain so the judging panel never saw them. This resulted in women joining the orchestra in significant numbers for the first time. I wish we could find a similar way to pick justices for the Supreme Court—I would like for them to be picked in a neutral way. As far as discrimination is concerned, and while I am conjuring up things that won’t happen anyway, I would not allow anyone who has studied law, is a lawyer, or had any experience in law to be on the Supreme Court. I would like the Supreme Court to be made up of citizens from all walks of life—a firefighter, a pilot, a factory worker, a farmer, a stay-at-home spouse, someone who has spent time living under a bridge, an urbanite, a shopkeeper. A Court of such constituents would force the lawyers appearing before it to explain their point of view in the simplest of terms, terms any American can understand. I have found any time you force the well educated to explain their expertise to the less educated, a good result occurs. We would all be better served.

3) President Obama selected Judge Sotomayor, if my theory holds, as a political decision to endear the Latino vote to him. This makes a filibuster suicide for the Republicans. Their chance, if they want to block this nomination is to “Bork” it just like Ted Kennedy did to jurist Bork. A filibuster will only serve to write Obama’s 2012 campaign ads. I think they should just let it go, there is nothing to be gained by an opposition stance that smells of politics.

But to wrap up, this column appears in PaperMoney, a specialized business publication. My overarching concern in this matter and the political climate blossoming in the United States and indeed around the world today (a new political party has just been formed in France called the “Anti-Capitalists") is that a new era of bashing business and all associated with it is upon us. This is dangerous and suicidal for everyone in the long term. For business is the real and only source of tax revenues. Business is where all goods and services that everyone needs every day are made and delivered to us. Business bashing is biting the hand that feeds us in every sense of the word. We are going to have a good chance soon to see if this anti-business climate works.

The Obama Administration just confiscated two very large automobile companies and essentially gave them to the United Auto Workers, apparently by persuading the bankruptcy court to ignore decades of case law. It will be interesting to see if the UAW can run them any better than management did (as a measuring stick, their respective managements were horrible and have set a very low bar, so perhaps the UAW can do better than they did, but can they do better than the competition and thrive is the real question).

Fortunately, neither one of them is important enough to affect the production of the necessary transportation vehicles we need to carry on every day life and commerce, so most of us can watch this experiment with little impact on our lives. It is only if you were a bondholder depending on your previously secure GM bonds for retirement that you will now find yourself working well into your eighth or ninth decade for sustenance due to these unprecedented legal decisions. I guess individual bondholders don’t deserve empathy in this new climate.