A New Supreme Court Justice

May 1st, 2009

With the retirement of Supreme Court Associate Justice David H. Souter at the end of this Court term, President Obama has his first opportunity to nominate a new Associate Justice.

As reported in The Washington Post, President Obama said

…he would nominate a replacement who both respects the Constitution and brings “empathy” and “understanding” to the bench.

“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.”

There’s no doubt that the nominee will be politically liberal.  That’s fine; the Democrats won the White House and the Senate, so they’ll get the nominee they want.  I just hope the Republicans are more respectful and less obstructive than the Democrats were when the shoe was on the other foot.

But what does the President mean when he says he wants someone who would bring “empathy” and “understanding” to the Court?  I would think that thorough knowledge of the Constitution and the law plus sound judicial temperament would suffice.  I suspect, however, that he means a justice who will consider not just the law but social and cultural vogues; matters of race, class, and ethnicity; the laws of other nations; and maybe even resolutions of the UN General Assembly. 

The President also wants a justice who will make constitutional and legal decisions based on whether people can make a living, care for their families, and feel safe in their homes and welcome in their nation.  What he wants, it seems, is just another legislator.  After all, these considerations are irrelevant to what the Constitution and laws actually say.  Making and changing laws that consider these kinds of issues, or perhaps attempting to amend the Constitution, is the job of legislatures and voters.  They didn’t teach that at Harvard Law School?

I guess we’ll know soon enough who the new nominee will be.  It’s certain that it will be a woman, an Hispanic, or an African American; who knows, perhaps he’ll find someone who’s a three-fer on the quota scale.  One thing for sure—no white male should be rushing to update his resume, nor should others outside the favored categories, regardless of their qualifications and potential to serve.

Wouldn’t it be nice if we selected justices for the Supreme Court on the basis of legal and judicial qualifications alone?


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5 Responses to “A New Supreme Court Justice”



  1. Brian |

    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.

    In other words, forget what he said about respecting the constitution.

    There are only two kinds of government: unlimited, and limited. If the government is limited, it is necessarily limited by a legal document we call a constitution. The government itself is a legal fiction, created by the constitution. To assume powers not enumerated within the constitution because of changes in vernacular or popular custom (or anything else) is a usurpation.

    IF there is a need for the federal government to do something that is not enumerated, then Article V needs to be invoked. The constitution cannot be changed by simple judicial fiat. I understand as well as anybody that the government can assume powers not delegated to it, and will incarcerate/fine people for violations of these powers.

    If the constitution must “change with the times” as some argue, it must stand to reason that the apologist for this change knows precisely what the “pre-changed” meaning/intent is, otherwise there would not be a recognized need for change. Again, if there is a need for a change, use Article V and amend the constitution.

    I remember arguing with my conservative/republican friends when Bush & Co were pushing for Homeland Security and all of that business. It was a horrible idea then because of the unconstitutional potential for abuse by that administration. Now, we see that Janet Napolitano includes returning military vets as possible terrorists. And, I imagine that she and her agency are going to act accordingly. Now, all of my conservative friends are mewling about what she’s doing.

    We can assume that we are far wiser and more intelligent than our founders, and completely ignore the reasons they drafted the constitution the way that they did; or, we can assume that they were reasonably intelligent men and try to understand all of the historical and philosophical reasons that they did what they did. If we do our “due diligence” and discover a defect, then by all means let’s go through the formal process of a change. If due diligence uncovers no defect, or no serious defect, then things should remain status quo ante.

    As Jefferson pointed out in the DoI, governments should not be changed for light or transient causes (prohibition, for example). We must learn all of those lessons. Unfortunately, I think our president doesn’t want to know of those lessons.


  2. duggy |

    I have always questioned the idea that our entire justice system hung in the balance because of political appointee’s and their particular leanings. We are told that the Constitution is all about interpretation not to mention the need for it to change with the times.
    Interpretation was meant to be simple and straight forward. The writers of the document intended for it to survive and to be understood by all concerned. I’m always appalled to hear when a Supreme Court decision is split along liberal and conservative lines.
    The notion that the Constitution should change with the times is another thing I feel is wrong. It’s not broke so don’t try to fix it.
    Instead of considering the above we continue to try and control the meaning of our Constitution by the justices we appoint. Rowe versus Wade is a good example.


  3. Trevor |

    Well said Tom…completely agree. My only hope is the person he nominates is qualified and has a track record of being a sound legal understanding.

    Judges don’t get paid to be empathetic. But in Obama’s world they do…very very scary.


  4. Trevor |

    Sorry- I obvi. didn’t proofread my comments…should read:

    Well said Tom…completely agree. My only hope is the person he nominates is qualified and has a track record of having a sound legal understanding.


  5. doris |

    Why is the constitution the end all? Yes, we live by it, but as with the Bible, isn’t it written by few men and interpreted by others and may need to be updated as with Rowe v Wade? Yes, we needed R v W to save thousands of young girls from illegal back alleys and coat hangers. Shouldn’t we be able to change things that aren’t reasonable and compasionate? Should all suffer because of very old words that, most are still to be cherished and lived by, but some need to be corrected and updated to reflect current ideals and beliefs, and remember the writers of the constitution were just men, not Gods, and although it is a remarkable document, must our very existence be so stringed and never to be questioned? I guess we can’t all agree on anything anymore so maybe we do need to leave it be, don’t know. I think the Bible was told to men but interpreted by men, means men, not women, get all the say and all the rules their way. Also, a lot of things in there are not even relevant now, but don’t scream at me, I do believe the Bible is mainly to be lived by, but everyone interprets it their own way.


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