Sunday, May 3, 2009

The Latest USAJOBS.COM Posting: 1 Supreme Court Justice Needed

The 9 Supreme Court Justices of the United States:
1. Justice Anthony Kennedy; Harvard Law School; appointed by Reagan 1988.
2. Justice Stephen Breyer; Harvard Law School, Harvard Law Review; appointed by Clinton 1994.
3. Justice John Stevens; Northwestern Law School, Northwestern Law Review; appointed by Ford 1975.
4. Justice Clarence Thomas; Yale Law School; appointed by Bush (41) 1991.
5. Chief Justice John Roberts; Harvard Law School, Harvard Law Review; appointed by Bush (43) 2005.
6. Justice Ruth Bader Ginsburg; Harvard & Columbia Law Schools, Harvard Law Review, Columbia Law Review; appointed by Clinton 1993.
7. Justice Antonin Scalia; Harvard Law School, Harvard Law Review; appointed by Reagan 1986.
8. Justice Samuel Alito; Yale Law School, Yale Law Journal; appointed by Bush (43) 2005
9. Justice David Souter; Harvard Law School; appointed by Bush (41) 1990.

I have a confession to make: I am a Constitutional Law Nerd.

Yes, I'm afraid it is true. I've got it bad. Like really bad. Like I should probably seek help bad. From the moment I got my hands on a copy of the Constitution during my first year of law school I remember studying it forwards and backwards. For some reason I was drawn to it (perhaps it fit my meticulous nature?). I can cite to it off the top of my head. I was a teaching assistant for the subject for 2 years. I wrote my Law Review note on a Constitutional Law issue. I interned with 2 different federal courts that dealt solely with Constitutional Law issues on a daily basis. I know the significance of "The Commerce Clause" and its evil twin "The Dormant Commerce Clause." I taught my bar exam study partner everything she needed to know about this section of the bar in under 30 minutes during one of our lunch breaks using a pen and a napkin. I know most of the info about the 9 Supreme Court Justices shown above by heart (I've even met a few of them in person). I know stupid little Constitutional facts that nobody cares about. Written September 17, 1787. Ratified in 1788. First President in 1789. 7 articles. 27 amendments. Sets up 3 Branches of Government: the Legislative, the Executive, and the Judicial.

Ah, yes, the Judicial Branch. An interesting branch of government indeed. What I find most interesting is that of the 3 branches of government, any citizen of proper age can run for office in the Legislative Branch (Congress) or the Executive Branch (The President), but unless you are specifically a lawyer you can't join the 3rd branch of government - the Judicial Branch.

As a law student, that always made me wonder what's so special about this so-called Judicial Branch? What makes it so exclusive? And as I soon learned some time later, the people write the laws through Congress, the President executes those laws through his/her various agencies (Social Security Administration, Dept. of Justice, Dept. of Treasury, etc.), but at the end of the day, it is the Judicial Branch that is the final arbiter on what the law "is" and what the law "is not."

There's an old lawyer joke that effectively has the following punchline: the law is whatever the courts say it is. The funny thing is that's actually true. Perhaps that is why picking a Supreme Court Justice is such a big deal. Supreme Court Justices get to say what the law is for the entire country and they get to do it for life. They're the ones who get to say whether abortion is legal or illegal, whether downloading music is copyright infringement, whether Bush or Gore won the election, whether affirmative action should exist in higher education, whether enemy combatants have rights in our prisons, or whether "separate but equal" schools will be allowed in this country. Given the aforementioned examples alone, one could make a strong argument that the Supreme Court is the most powerful of the three branches of government...even more powerful than the President. (see U.S. v. Nixon)

So on Friday morning, May 1st, 2009, you can imagine my eyebrows raising up as high as they can go on my forehead when it was officially reported that the #9 guy shown up above, Justice David Souter, is planning to retire this summer before the next term begins for the Supreme Court. This means that President Barack Obama will have his first chance to select somebody to fill this seat (with approval of the Senate of course). For liberals, this represents a day of rejoice; for conservatives, the opposite. Already the conservative blogosphere has run rampant with speculation of who Obama will choose and what arguments can potentially be made against them before the candidate is even chosen.

Indeed, a wikipedia page of all the potential nominees can already be seen HERE.

It is notable to observe that there is only 1 female and 1 "minority" (and I use that term loosely) currently among the 9 Justices who set policy for the entire nation. Thus, the concern on the Right is, of course, that Obama will choose a liberal candidate, perhaps even a minority female candidate, who will bring her own experiences to the bench. It is also notable to observe that the current make up of the Supreme Court is 5 conservatives, and 4 liberals with Justice Kennedy (a conservative) playing the role of "swing voter" in the middle. The soon-to-be-retired Justice Souter is one of the 4 liberals. Thus, replacing Souter with another liberal will not change the ideological make up of the Court.

Obama has stated that:

"I taught Constitutional Law for 10 years, and . . . when you look at what makes a great Supreme Court justice, it's not just the particular issue and how they rule, but it's their conception of the Court. And part of the role of the Court is that it is going to protect people who may be vulnerable in the political process, the outsider, the minority, those who are vulnerable, those who don't have a lot of clout.. . . [S]ometimes we're only looking at academics or people who've been in the [lower courts]. If we can find people who have life experience and they understand what it means to be on the outside, what it means to have the system not work for them, that's the kind of person I want on the Supreme Court."

The reaction on the Right might be best summarized by Wendy Long, legal counsel to the Judicial Confirmation Network and former clerk for Justice Clarence Thomas:

"President Obama has referred to this nice word empathy. He thinks judges should have empathy for certain litigants who come before them. Of course if you have empathy for everybody who comes before you, there are two sides to every case. If you have empathy for both sides then that's the same as having no empathy at all. So what he means is he wants empathy for one side and what's wrong with that is it is being partial instead of being impartial. A judge is supposed to have empathy for no one but simply to follow the law."

The question I submit is what criteria should the President consider in a Judge? Specifically, should a candidate's gender or minority status be considered when choosing the next Justice for the Supreme Court of the United States? Why or why not?
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