Chief Justice nominees
bobsheridan at earthlink.net
Thu Feb 24 14:56:15 PST 2005
RJL writes in part:
"... If, however, one requires "experts" to have knowledge and judgment
inaccessible to the public and other professionals, knowledge that
derives from some neutral conception of the judicial process, then
there's no point in consulting law professors or anyone else for that
matter because such knowledge is illusory..."
What a thought provoking idea.
How much of the important work of a Supreme Court justice depends on a
technical knowledge of the ins-and-outs of case-after-case? Suppose a
hypothetical future justice, who was not well-versed in case law, were
to say to several law clerks: "I don't care what you have to come up
with doctrinally to achieve the result I want in this case, but here it
is: I'm for (or against) the death penalty (or abortion, or slavery,
And the technically more proficient support staff say in reply, "Okay,
but we might have to overrule the X case, or expand the Y case, or
invent some new words that sound like Conlaw, such as "penumbras and
emanations," or "congruent and proportional," (that actually describe
what they''re doing).
What would be wrong with that? We get the benefit of a moral
sensibility of a presumably high order, one not burdened, perhaps, with
some of the baggage that working as a lawyer or judge tends to accumulate.
I'm sure it's nicer, more efficient, and perhaps will produce a more
individualized result if moral sensibility is combined in one person
with technical and verbal dexterity, as it was, for example, with
Justice William O. Douglas, and has been with Chief Justice William H.
Rehnquist, to pick a leading liberal and a leading conservative.
I'm told that there's no rule that you have to be a law school graduate
to be nominated to the Supreme Court. One could imagine a respected
moral figure who was not an attorney being appointed to the Court and
applying an acute but not-strictly-legal sensibility to the process of
deciding and explaining. How much of Brown v. Board was strictly the
stuff of lawyers and how much a heightened moral sensibility whose time
had come politically?
Why not a former president, say Jimmy Carter, Mr. Human Rights, for the
next CJ? I would expect that he'd make a humane justice who'd leave a
lot of the writing to the law staff.
We could do a lot worse.
RJLipkin at aol.com wrote:
> In a message dated 2/24/2005 2:07:14 PM Eastern Standard Time,
> crossf at mail.utexas.edu writes:
> Well, I'm a mite frustrated with the whole process. If this is a
> political act, and it reasonably can be so characterized, what's
> the point in law professors weighing in? Why should our political
> opinions be privileged over those of any other American?
> Two responses: (1) They shouldn't be /privileged/, but (2)
> though not privileged, it might still be advisable or prudent if one
> wants to assess Jones' professional capabilities to seek the advice of
> other professionals in the same field. To insist on interesting and
> vital */and /*political neutral talents of judges is, I suspect, to
> embrace a rather wide dichotomy between law and politics.
> But many share that view. The point I wish to make is that
> even rejecting the distinction between law and politics one might
> still have reason, when assessing a judge, to ask those familiar with
> his work. The resulting evaluation, though political, might
> nevertheless be illuminating to Senators deciding how to vote. I say
> "illuminating." I could also say "interesting," "relevant," "helpful"
> and so forth. If endorsing a judge's nomination is a political act,
> others besides law professors /should/ weigh in; but that doesn't
> detract from the value Senators and the public might derive from the
> opinions of law professors. If, however, one requires "experts" to
> have knowledge and judgment inaccessible to the public and other
> professionals, knowledge that derives from some neutral conception of
> the judicial process, then there's no point in consulting law
> professors or anyone else for that matter because such knowledge is
> Mark Graber is right. But it doesn't follow (nor do I read
> Mark to insist that it does) that signing a petition in favor of a
> candidate is not a political act. Nor does it entail that there are
> neutral answers to the questions Mark poses.
> Robert Justin Lipkin
> Professor of Law
> Widener University School of Law
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