Monday, April 12, 2010

Hiring a Supreme Court Justice - Reprise

With the impending retirement of Justice Stevens from the Supreme Court, I’m going to post a re-working of something I posted here before. The selection of his replacement is so important to our freedom and way of life that I believe it justifies some repetition.

I ask all readers to contact their senators and urge them to commit to oppose any court nominee who fails to meet the criteria set forth below.

Hiring decisions can be difficult or relatively simple, depending on the nature of the job. It can be easy to hire someone to pick up litter in a park; almost anyone can do that. Even if the person hired does a poor job no long-term damage is done and it’s easy to replace him. However as the job gets more complex, the difficulty of finding the right person increases, as does the potential damage he can do. A corporate chief executive officer can ruin a company in a hurry. Furthermore there are not many people available who can and will do the job right. For that reason companies looking to hire a CEO usually take a long time and carefully evaluate potential candidates.

The hiring of a justice of the Supreme Court is more important than hiring a corporate CEO, maybe even more important than hiring a president of these United States. Justices receive lifetime appointments and are essentially accountable to nobody. A vote of five justices decides a case, making it the law of the land. There is no appeal. That makes each justice effectively one fifth of a dictatorship. It is a position of extreme trust and with the ability to do a lot of damage. This is not a position for which we can take a chance and replace the person in a few years if we don’t like the outcome. Selection of justices has to be done right, and done right the first time.

That means we should not just make sure there is no evidence against a potential justice. We must make certain that the person is qualified. This is not a criminal trial in which the appointee is innocent until proven guilty. Instead all candidates should be considered unqualified until shown beyond reasonable doubt to be qualified. The burden of proof is on the candidate and his or her supporters. I repeat here the five requirements I regard as mandatory for such justices:

1. Absolute integrity.
2. Commitment to the constitution and constitutional law.
3. Ability to subordinate personal belief and preference to the constitution and the law.
4. Intellectual ability to weigh issues and to decide wisely based on evidence, fact, and logic.
5. Sound knowledge of the law and the constitution.
Those should be requirements of any judge but especially of those on the high court since there is no appeal from their decisions. These criteria are critical to a good judiciary and I believe their importance is in the order listed.

Integrity: We must have integrity in any government official but especially in judges. Without integrity, other ability becomes a means to abuse the powers of office. A corrupt judge with great ability will use that ability for his own benefit and against the good of the country. We’ve had one justice (Abe Fortas) who resigned in a bribery scandal, we do not need another.

Commitment to Constitution and Law: Justices must be committed to our constitutional form of government, and to constitutional law. We have a representative republic with carefully crafted protections against abuse of power and the court must uphold that form of government. Substitution of its own wisdom for the constitutional law of the land would put the court the position of a dictator. Legislation should be left to senators and representatives who are accountable to the voters; the court is not a super-legislature.

Subordination of Personal Belief to Law and Constitution: Justices must subordinate their own beliefs and desires to law and constitution. One mark of a good judge is to set aside personal preference and judge according to the law. To do otherwise would again be putting himself in the position of dictator, imposing his own will on the electorate. We need justices who can say, "I dislike this law. I think it is dumb. However it is the law and it is constitutional so I must let it stand." Justices must recognize that they are "hired hands," employed to serve the people according to the "contract" set forth in the constitution. They may think that a law is stupid, and in this they may be right. However they must recognize that voters and their representatives have a right to make laws, even stupid laws.

Intellectual Ability: Justices must have the intellectual wherewithal to deal with the issues they will face. This seems obvious. Not only are the issues themselves often complex, but there are smart lawyers arguing each side. A justice must be able to consider all aspects of a case, cut through the intellectual fog, and decide on the basis of fact, logic, law and constitution.

Knowledge of Law and Constitution: Judicial nominees must have a sound knowledge of the law and the constitution. They must know and understand the basis on which they are to decide.

The president must reject the temptation to appoint justices who will advance a political agenda, instead seeking those who meet the above requirements. Justices should be judges, not politicians.

You will notice some characteristics missing in the above requirements. I have said nothing about having a balance between races, sexes or any other such thing. We don't need female judges and we don't need male judges. We don't need black judges, white judges, yellow judges, or brown judges. We just need judges who can and will do the job as it should be done, be they male or female; black, white, brown or yellow.

We should all contact our senators and urge them to carefully evaluate the beliefs and judicial qualifications of any nominee. If the nominee fails to meet, beyond reasonable doubt, any of those criteria, he or she should be rejected.

If you like my blog, please tell others.
If you don’t like it, please tell me.

No comments: