Monday, April 19, 2010

Court Commentary: Nominee to the Court

As I've said before, the Supreme Court is one of the parts of government I get most excited by (even going so far as to daydream of serving on it), so I'm watching with rapt attention to see how the replacement of John Paul Stevens plays out.

Here's my hope for what the nominee encapsulates. I'll leave out the identity politics, because that basically turns into a game of "which underrepresented minority most deserves the next seat." Also, it is funny to me that Protestant is an underrepresented minority.

Here's my qualifications:
  • Trial Judge: I was shocked when I found out that Sonia Sotomayor is the only trial justice on the Supreme Court. Trial judges are often the ones dealing with trials that need the clearest and the fairest system of law. The Supreme Court has a hard time dealing with human rights -- after all, with the notable exception of Brown v. Board of Education, most advances in rights have come from the legislative (the Constitution and its amendments, the Civil Rights and Voting Rights acts, etc.) and not from the courts; the courts merely defend the rights that Congress have established. But on the issue of fair trials and the rights of the accused, the Supreme Court is the first line of defense. When it comes to our national defense and war on drugs policies, it takes a trial judge to know how the legal system works in actual practice. Whereas policymakers and voters tend to believe that criminals should be treated as criminals, trial judges remember innocent who also have to go through the same legal system, and that a legal system that is abused can hurt the innocent.
  • Can't Have a Middle Name that Starts with G: Antonin G. Scalia, John G. Roberts, Stephen G. Breyer -- clearly people with the middle name G. are over-represented.
  • Strongly Anti-Executive: I'm not particularly anti-executive myself -- balance in all things -- but although I don't think the court is necessarily too conservative, but it is true that although the Court is moderate in many areas, it has been pushed more strongly in the direction of a strong executive branch with the inclusion of John Roberts and Samuel Alito. Particularly in the wake of the Bush Administration,
  • Southern: Regionally, it would be helpful if the nominee came from the South. The only currently serving candidate from the south is Clarence Thomas, and we all know he doesn't count:
    Thomas had gone 2 years and 144 cases without speaking up during oral arguments. "It is a period of unbroken silence that contrasts with the rest of the court's unceasing inquiries," the AP wrote at the time.
    The First, Second, Third, Seventh, and Ninth Court of Appeals are all represented on the Court, as well as the D.C. Court of Appeals. The Fourth, Fifth, Sixth, Eighth, Tenth, or Eleventh all have a different sort of background from the ones represented on the Court, and it would be useful to have some sort of representation from them.

    Politically, by the way, this might be a helpful as well (secondary to the judicial gains of diversity).
  • Corporate-Skeptic: I don't want to say that I would select him/her to overturn a particular ruling (although I think we all know which one I would want overturned). But the general outlook should be that the Supreme Court should not simply be skeptical of the power that the federal government (and particularly the Executive Branch) can exert over individuals, but also the power that corporations have over people in realms where they are not over-ruled by the government. Net Neutrality, for instance, has a high likelyhood of sitting in front of the high court after an appeals court ruled that the FCC's net neutrality regulations are legally improper. There, the corporations show that they have a control over the information we receive, and can do so because of a difficulty in competition and a lack of transparency over the tactic.
I'm sure there are other important things to look for in a nominee, but those are the things that stick out to me.

No comments: