Garland Born To Be A Judge

National Journal

I recently asserted that any of the four people on the list initially leaked by the White House would be an excellent nominee to succeed retiring Justice John Paul Stevens. (See "An Excellent Supreme Court Shortlist," 4/10/10, p. 15.) Now I’d like to argue that the wisest choice would be Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit.

I hasten to add that the consensus that Garland would be the least controversial, most easily confirmed nominee is the least of my reasons for praising him.

Nor is my personal relationship with Garland a substantial factor, although full disclosure is in order: We became friendly in law school, working together on the law review in the mid-1970s. We had dinner at each other’s homes years ago and, more recently, have met for lunch once or twice a year. He invited my wife and me, among many others, to his chambers to watch President Obama’s inauguration. Garland has been guarded about his views, and I know nothing about them beyond the public record. But I can testify — as can many others — that he is about as fair-minded, judicious, and straight as a straight-arrow can be.

To be sure, ranking Garland and the three other shortlisters — all people of outstanding integrity and intellect — is a close call.

Solicitor General Elena Kagan, the early betting favorite, would bring youth (she is 49; Garland is 57), charm, and substantial conservative as well as liberal support. The former Harvard Law School dean is unencumbered by much of a paper trail — her views on almost all of the big issues are unknown — or by as much real-world experience as the others.

An Excellent Supreme Court Shortlist – The Ninth Justice

National Journal

With the long-expected announcement by Justice John Paul Stevens that he will retire by July, the coming summer could be dominated by a big confirmation battle — or perhaps just enlivened by a little skirmish, if President Obama picks a relatively uncontroversial nominee.

Many Republicans are spoiling for a fight to rev up their base for the coming elections. Some would depict any Obama nominee as an ultra-liberal eager to push the Court to the left, legislate from the bench, impose gay marriage by judicial decree, strip "under God" from the Pledge of Allegiance, invent welfare rights, require government-funded abortions, and free terrorists.

But, in fact, none — or at most one — of the four brainy and well-qualified public servants at the top of the shortlists that have made their way into the media from inside sources seems likely to move the Court left.

None of the four is clearly more liberal than Stevens, who is in turn a lot less liberal than, say, the late Justices William Brennan or Thurgood Marshall.

Stevens, who will still have one of the best minds on the Court when he turns 90 on April 20, has long insisted that he remains the old-fashioned judicial conservative and moderate Republican he was when President Ford appointed him in 1975. But the leftward drift of his opinions over the years has made him the senior member of the four-justice liberal bloc.

The four shortlisters are Solicitor General Elena Kagan; federal Appeals Court Judges Diane Wood of Chicago and Merrick Garland of the District of Columbia; and (though some count her out) Homeland Security Secretary Janet Napolitano. President Obama interviewed Kagan, Wood, and Napolitano last spring before choosing Sonia Sotomayor, an Appeals Court judge, to succeed Justice David Souter.

Should Justice Be Driven By ‘Empathy’? – The Ninth Justice

National Journal

Barack Obama first explained his "empathy" test for choosing justices in voting against the nomination of John Roberts to be chief justice in 2005:

What matters on the Supreme Court is those 5 percent of cases that are truly difficult… In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or… whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.

Obama has repeatedly stressed the "empathy" criterion since then. Meanwhile, conservative senators and legal experts and some centrists have criticized it as a thinly veiled rationale for seeking justices who will bend the law to benefit favored classes of people. That, the critics stress, invites a cardinal violation of the judicial oath to do "equal justice to the poor and to the rich" — and to all others — not to mention the constitutional command to provide all persons "the equal protection of the laws."

Indirect Vetting: Necessary But Tricky – The Ninth Justice

National Journal

President Obama will not begin interviewing possible Supreme Court nominees until next week at the earliest, according to the White House. So what’s going on behind the scenes?

I don’t know for sure, but I can guess: Apart from vetting the leading prospects to flush out any character flaws, ethical issues or tax problems of the kind that have plagued some Obama nominees, the White House is probably devoting lots of attention to ideological vetting.

The goal of this process, which reportedly started long before it was clear that there would be a Supreme Court vacancy to fill, is to forecast insofar as possible how each prospect might rule on the biggest issues likely to come before the court in the next few years.

Like any president, Obama would prefer a nominee likely to uphold his own personal convictions on such issues as presidential war powers, abortion, racial affirmative action, voting rights, gay rights, religion in public life, assisted suicide, campaign finance reform and use of a litigation as a tool of social reform. Indeed, as someone who taught constitutional law, Obama may care more than most presidents about how his nominee will handle the big issues.

Ideological vetting of judicial nominees is a tricky business. A quotation often ascribed to President Lincoln helps explain why. Lincoln wanted to appoint a chief justice who would uphold the Union’s legal tender law, which required people to accept paper money as payment for private debts. "We cannot ask a man what he will do," Lincoln supposedly said, "and, if we should, and he should answer us, we should despise him for it. Therefore we must take a man whose opinions are known."

Obama’s Ideal Justice

National Journal

Many hope, and many others fear, that President Obama will choose a crusading liberal activist to energize the Supreme Court’s progressive wing.

Such an appointee might push to expand racial preferences, abortion rights, and especially welfare rights for poor people; to strike down the law barring openly gay people from the military; to recognize gay marriage (which Obama has opposed); to end the death penalty and curtail gun rights (both of which he has supported); to free Guantanamo detainees unless they can be convicted of crimes (which would reject Obama’s policy); and much more.

The preceding parentheticals suggest some of the reasons I’m cautiously betting that Obama will choose a moderate liberal who believes in judicial restraint. By this I mean deference to elected officials unless they violate clear constitutional commands or show gross irresponsibility. The lack of such restraint is what I mean by "judicial activism."

A restrained liberal justice might, for example, hope for legislative recognition of same-sex marriage (as do I) but decline to rewrite the Constitution to override the democratic process on the issue by judicial decree.

This is not to suggest that the president will pick a centrist, let alone a conservative. Filling moderately left-of-center Justice David Souter’s seat with anyone seen as more centrist would be a stunning abandonment of Obama’s campaign stance that would infuriate his liberal base.

But nominating a crusading liberal activist could seriously jeopardize the president’s own best interests, in terms of policy as well as politics. And although some of Obama’s past statements are seen by critics as a formula for judicial activism, he has also shown awareness of its perils.

As a matter of policy, consider Obama’s most important responsibility: protecting our national security from jihadist terrorism and other threats.

12 Points To Consider In Replacing Souter

National Journal

Editor’s Note: I have been persuaded that I was unfair to Judge Sonia Sotomayor, who is widely seen as a possible Supreme Court nominee, in this article posted on May 1. I regret calling her "exceptionally controversial," which was an overstatement. I also regret citing anonymous claims that she has been "masquerading as a moderate," which I do not know to be true. — Stuart Taylor Jr., May 5

Random thoughts on Justice David Souter, his expected retirement and next steps for President Obama:

• Souter was a stealth nominee when he was named by President George H. W. Bush in 1990 — many liberals at the time denounced him as a closet right-winger, and he was privately touted as such by then-White House Chief of Staff John Sununu. Souter’s fulsome praise of Justice William Brennan (whom he succeeded) at his confirmation hearing suggested that he might lean more left, and he has been consistently left of center since he got to the court.

He moved in his first few years from moderate-liberal to liberal — most notably in joining the Sandra Day O’Connor-Anthony Kennedy-Souter swing opinion that reaffirmed (but slightly narrowed) Roe v. Wade in the big 1992 decision in Planned Parenthood v. Casey. Souter became a reliable member of the liberal bloc on every major issue and most, if not all, minor issues. The major issues — abortion, race and affirmative action, presidential war powers versus civil liberties, gay rights, church-state issues and campaign finance. But unlike Harry Blackmun, and to some extent Warren Burger and John Paul Stevens, this is not a guy who started out conservative or centrist and then "evolved" — he was never conservative.

• With such a big Democratic majority in the Senate, Obama could get just about anyone confirmed easily. But the Republicans could bleed him some politically if he made an exceptionally controversial pick.

A Tough Choice Draws Nearer

Newsweek

President Obama has tried to remain true to his campaign message of bipartisanship. But he’s struggled to get everyone else to play along. Congressional Democrats, finally out from under the GOP thumb, want to enjoy their powers, while Republicans are already plotting their comeback. It’ll only get worse with time, as firm decisions have to be made on issues that are loaded with ideology and emotion.A reminder came with the news that Supreme Court Justice Ruth Bader Ginsburg underwent surgery

President Obama has tried to remain true to his campaign message of bipartisanship. But he’s struggled to get everyone else to play along. Congressional Democrats, finally out from under the GOP thumb, want to enjoy their powers, while Republicans are already plotting their comeback. It’ll only get worse with time, as firm decisions have to be made on issues that are loaded with ideology and emotion.

A reminder came with the news that Supreme Court Justice Ruth Bader Ginsburg underwent surgery for pancreatic cancer. Ginsburg, 75, has no app…

President Obama has tried to remain true to his campaign message of bipartisanship. But he’s struggled to get everyone else to play along. Congressional Democrats, finally out from under the GOP thumb, want to enjoy their powers, while Republicans are already plotting their comeback. It’ll only get worse with time, as firm decisions have to be made on issues that are loaded with ideology and emotion.A reminder came with the news that Supreme Court Justice Ruth Bader Ginsburg underwent surgery

President Obama has tried to remain true to his campaign message of bipartisanship. But he’s struggled to get everyone else to play along. Congressional Democrats, finally out from under the GOP thumb, want to enjoy their powers, while Republicans are already plotting their comeback. It’ll only get worse with time, as firm decisions have to be made on issues that are loaded with ideology and emotion.

What’s At Stake: Supreme Court

National Journal

The federal judiciary will become markedly more conservative if McCain wins and markedly more liberal if Obama does. This shift will affect the outcomes of cases involving a host of ideologically charged issues, including abortion; gay rights; affirmative action; the death penalty; the rights of suspected terrorists; gun control; property rights; the environment; regulation; and big-dollar lawsuits against business.

To woo conservatives who have long mistrusted him, McCain has bashed "activist judges" who "legislate from the bench." He has cited Bush-appointed Chief Justice John Roberts and Justice Samuel Alito as his models of restraint.

Obama, who taught constitutional law at the University of Chicago, voted against the confirmations of Roberts and Alito, saying that they too often side with "the powerful against the powerless" and lack "empathy" for ordinary people.

The replacement of a retiring liberal justice by a conservative McCain appointee, or of a conservative by a liberal Obama appointee, could give the Supreme Court an ideologically solid majority for the first time in decades and gradually make a dramatic impact on the course of the law. That’s because the current Court is so closely — and deeply — divided. It has four liberals, four conservatives, and one justice (Anthony Kennedy) who swings depending on the issue.

In the Balance

National Journal

Among the starkest contrasts between John McCain and Barack Obama is the dramatic difference in their promised approaches to judicial appointments, especially to the closely divided Supreme Court.

McCain, eager to establish credibility with conservatives, has bashed liberal "activist judges" who intrude into "policy questions that should be decided democratically,"and essentially vowed to move the Court sharply to the right in judicial philosophy.

The presumptive Republican nominee has identified Bush-appointed Chief Justice John Roberts and Justice Samuel Alito as models.

Obama, who voted against both men during their Senate confirmation hearings, has said that they and the Court too often side with "the powerful against the powerless" and lack "empathy" for ordinary people. The presumptive Democratic nominee exudes determination to move the Court sharply to the left if he gets the chance.

At a time when the Court is precariously balanced–with four conservatives, four liberals (including the two oldest justices), and the ideologically eclectic Anthony Kennedy–these contrasting approaches have provided opposing activists with nightmare visions to rally the Democratic and Republican bases during the presidential race.