May 01, 2009

On Filling Justice Souter’s Seat

There is much to say about the retirement of Justice David Souter, but for now we’ll limit ourselves to forward-looking thoughts about filling his seat on the Supreme Court. Our comments are grouped by who they pertain to (all comments can be attributed to CFJ Executive Director Curt Levey).

To Republican senators:

Take your time in examining the President’s Supreme Court nominee. The selection of judges is an issue of the highest priority for your voters and they expect it to be the same for you. While your voters may disagree with a decision to support a liberal nominee, they will understand any decision that is well thought out. However, should you race to support the nominee before their Senate hearing, Republican voters will be far less forgiving – all the more so if you appear to be pandering to the various identity groups that may cheer a historic nomination.

While each Republican senator must make up his or her own mind, do not roll over. The mere three votes against the confirmation of Ruth Bader Ginsburg – a nominee who was on record saying that laws against prostitution and bigamy were probably unconstitutional – is a classic example of what not to do.

Republicans on the Judiciary Committee should not be afraid to ask the kinds of tough questions that Democrats asked of nominees such as Robert Bork, Clarence Thomas, and Samuel Alito. In particular, the next Supreme Court nominee must be asked whether they share the President’s decidedly activist view that judges should consider, not just the law and facts, but also empathy for certain classes of people, including African-Americans, the poor, gays, and the disabled. You owe it to the American people and to senators not on the Committee to ensure that support or opposition to the nominee is based on thorough scrutiny of their record and judicial philosophy.

To red and purple state Democrats:

Remember the values of the regular folks who sent you to Washington. Don’t vote for a Supreme Court nominee whose values are closer to those of the intellectual elite than to those of your constituents. Let President Obama know now that you will not appreciate being put in that position. While it’s too early to know how much money will be spent on advertising to defeat an activist nominee, it is virtually certain that the money will be directed at red and purple state Democrats.

To Sen. Arlen Specter, who will play a pivotal role in the looming Supreme Court confirmation battle, we express appreciation for your pledge not to be a dependable 60th vote on cloture, and for your promise
to be an independent voice who will continue to differ from Democrats on the issues – including judicial nominations – where you have traditionally differed. You got off to a great start on Tuesday by reiterating your opposition to Obama Justice Department nominee Dawn Johnsen, and we trust that you will similarly serve as a check on any Supreme Court nominee that favors judicial activism over the rule of law.

To all supporters of the President’s eventual nominee:

Please keep in mind that President Obama voted against the Supreme Court nominations of John Roberts and Samuel Alito and supported the attempted filibuster of Alito. So please respect those who choose to oppose the President’s Supreme Court nominee by refraining from empty “party of NO’ rhetoric and name calling. For example, before you call anyone a racist, consider the leaked Democratic Judiciary Committee memos that revealed that opposition to D.C. Circuit nominee Miguel Estrada was based on fear that he would eventually become the first Hispanic Supreme Court Justice.

To President Obama:

Given the economic crisis, your ambitious legislative agenda, and your promises to rise above partisanship, one would think you would eschew a bitter, distracting confirmation fight and a sparking of the culture wars by naming a consensus nominee that moderate Republicans and Democrats can embrace. While we remain open to evidence to the contrary, it is our belief that potential nominees such as Sonia Sotomayor, Kathleen Sullivan, Harold Koh, and Deval Patrick are so clearly committed to judicial activism that they make a bruising battle unavoidable.

We realize that, in the past, you have said that you want judges who rule with their hearts and you have even expressed regret that the Warren Court “didn’t break free” from legal constraints in order to bring about “redistribution of wealth.” But now would be a good time for you to clarify if you feel that you may have gone too far by endorsing judicial activism. For example, you could make it clear that you agree with Attorney General Eric Holder’s recent statement that “judges should make their decisions based only on the facts presented and the applicable law” (response to written question from Sen. Arlen Specter).

We also hope that you resist the pressure you will inevitably face from the various identity groups that dominate the Democratic base. It would be a shame if you chose a nominee based on their race, gender, or sexual identity, rather than focusing exclusively on qualifications and judicial philosophy.

We remind you of your opposition to gay marriage, your commitment to individual Second Amendment rights, your support of the death penalty, and the great value you place on the role of religion in society. We hope you will not contradict those positions by choosing a Supreme Court nominee who has questioned the constitutionality of the death penalty, expressed an extreme view of the separation of church and state, or wavered on the questions of whether there is a constitutional right to same-sex marriage and an individual right to own guns. Also, given your promise to move the nation “beyond race,” it would be hard for you to explain the
nomination of someone who has expressed support for racial preferences, which polls indicate are now even more unpopular as a result of your election.

While many Americans – including some conservatives – are willing to give your experiment in using honey to coax cooperation from other nations a chance, the public is also looking for reassurance that our nation’s interests and sovereignty will always come first. Thus, now would be an awful time to choose a Supreme Court nominee who believes that American courts should put greater reliance on foreign law.

Finally, we remind you that, in the first year of his Administration, George W. Bush successfully nominated two former Clinton nominees – Roger Gregory and Barrington Parker – to the appeals courts in an effort to set a bipartisan tone. Now would be the perfect time for you to match the previous President’s gesture by renominating three unconfirmed Bush appeals court nominees who have bipartisan support – Peter Keisler, Judge Glen Conrad, and Judge Paul Diamond. Such a gesture would engender good feelings among Senate Republicans and would set a positive tone heading into what might otherwise be a bitter confirmation fight.

Links to this post:

Create a Link

<< Home