Qualifications for Judicial Nominees

We have discussed on several occasions nominations of Supreme Court justices. Chief Justice Roberts famously compared the job of a justice to the job of an umpire calling balls and strikes. You stand behind the plate and if the ball travels inside that territory called the strike zone, it’s a strike; if not, it’s a ball. The strike zone is real and measurable, although baseball has chosen not to use high tech equipment to second guess the umps.

But how can Roberts apply that to law? The Constitution includes some wonderfully majestic and undefined phrases like due process, equal protection, freedom of speech, commerce among the several states. It includes descriptions of the powers of the president and Congress that do not discuss the modern conundrums in which we find ourselves. There is no instant replay camera that can tell us whether the ump got it right or the ump got it wrong. In the ballpark fans yell “Kill the umpire” but it’s the language of partisans, not verification.

In our Constitutional Convention delegates talked about judicial discretion. They understood, in the language of James Wilson, representing Pennsylvania at the Convention, that a law might not be “so unconstitutional” that the Court would disallow it. That more or less, that “so unconstitutional”, is the language of discretion. And the founders of this country, the creators of our laws, understood it very well.

So how can one apply that kind of analogy to law? As if the majestic uncertainties of our Constitution were in fact numbers in an accountants ledger? Only one who has not been exposed to other ways of understanding or one so arrogant in his or her own views not to be able to respect the thinking of others, can see the Constitution is those terms. On law faculties we discuss meanings endlessly, trying to improve our understanding of the Constitution, expecting different views and welcoming the discussion. We may be passionate. But we are not blind and deaf to the views of others, incapable of imagining other ways of understanding. But if you’ve never been exposed, or never learned to respect the views of others, it’s possible to believe there is only one way.

Most of us start that way; as we are first exposed to the Constitution in our youth it has all sorts of meanings that seem obvious to us just as our politics seemed obvious then. But as we mature we come to understand the complexity of reality, and appreciate different ways of thinking. The Constitution is not child’s play. That’s why it requires judgment. And that’s why the claims of people like Roberts and Scalia that the Constitution is clear and there is only one way to understand it, that we can read the text and know what it means, is either naivete or cynical manipulation. Either way it evinces a lack of respect that is inappropriate in a democracy.

Indeed lack of respect for contrary views has become a great problem in contemporary America. Many of us grew up telling each other that one of the marks of democracy is respect for the opinions of others. Members of the highest court in this land ought to be people who understand that.

So I hope Elena Kagan has strong, passionately held views, views that are quite different from the reigning ideas of Roberts, Alito, Scalia, Thomas, and often Kennedy, in the breadth of her understanding. We can do better than appoint judges whose sense of certainly is the result of cynicism, ignorance or arrogance.

This commentary was broadcast on WAMC Northeast Report, June 1, 2010.

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