The Ideal Supreme Court Nominee

Written by Rebecca Zietlow on May 7th, 2009

As a constitutional law professor who spends so much of my time analyzing Supreme Court opinions, I cannot resist opining on what I believe to be the most important qualifications of the next Supreme Court justice.  First, the qualifications which don’t matter as much to me: I would not apply any litmus test on any particular subject, and I neither expect nor particularly want the next Supremtmpphpeiswgm1.jpge Court justice to be able to restore the liberal activism of the Warren Court.  Instead, I agree with President Obama that the most important qualification should be empathy – the ability to understand and relate to the way that the law actually affects real people.  The current Supreme Court has shown a blind eye towards average working people in cases such as the Lilly Ledbetter case, instead consistently favoring the interests of big business.  The importance of empathy is one of the reasons why I argued two weeks ago that the President should appoint more women to the Supreme Court.  To be clear, this is not because I believe that women are inherrently more empathetic, but because Supreme Court justices, like everyone else, see the world through the eyes of their own personal experience.  Therefore, the more different experiences that the Justices bring to the Court, the better.   For the same reason, I hope that President Obama considers racial diversity in his decision-making process, and favors those with less privileged backgrounds.

The second most important characteristic of the ideal Supreme Court nominee would be that he or she has some respect for the political process, and for the ability of lawmakers to consider constitutional values and limitations when they are making laws.  The members of the current Supreme Court have shown a remarkable disrespect for legislatures, including Congress, for example striking down civil rights legislation in the name of separation of powers and sovereign immunity.  This disrespect may be due to the fact that none of the current members of the Supreme Court have ever held political office, and only one, Justice Stephen Breyer, has worked within that process, as special counsel for the Senate Judiciary Committee.  Such experience would not be a pre-requisite for the ideal Supreme Court nominee, but it would certainly be a plus.

Third, the ideal Supreme Court nominee whould have a good knowledge of history, especially United States history.  It should be a person who understands the momentous transformation that our country and our constitution underwent during Reconstruction, a person who appreciates the persistent and overwhelming prejudice that African Americans have suffered in our country since then.

Finally, the ideal Supreme Court nominee must be both young and healthy.  This observation is not “agist,” but pragmatic.  Supreme Court nominations are arguably the means by which the President makes the most lasting impression on the country, as both Presidents Bush recognized when they nominated young Justices who are likely to be around for many years.  I have every hope that President Obama will appoint an excellent, qualified person to the Supreme Court, one who can use his or her persuasive powers to start to move the Court away from its rightward trajectory of recent years.  Whoeever it is, I want that person to be around for a long time.


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