As many of you may have read, Justice Sandra Day O'Connor announced her retirement early today. Story here. This was predicted by Bill Kristol, and posted here. As has been consistently the case, SCOTUS blog offers some well reasoned commentary on the matter. Lyle Denniston, in a recent post, had this to say:
President Bush has it in his power to make the Senate process in considering an O'Connor successor move more rapidly and with less controversy. If he were to choose a nominee of unquestioned reputation, strong judicial temperament, and moderate views, the chances are that the Senate fight might not be as deep, as angry or as prolonged.While I do not take issue with any of SCOTUS blog's coverage, nor Lyle's post in particular, his use of "unquestioned reputation, strong judicial temperament, and moderate views" is indeed a symptom of how popular culture's coverage of the law misapprehends what's really taking place. Strictly speaking, this isn't anything wrong with Lyle's phraseology here. If President Bush nominates someone with these three characteristics, the confirmation process will be less a battle, and more a seamless transition. I believe a more accurate way of capturing the situation is to ask whether the President can appoint someone with those characteristics. Now, I do not mean to ask whether the President has the actual (read: physical) ability to do such a thing. Of course he does. I am also not asking whether the President has the constitution to do such a thing. This point many would debate. What I am trying to get at is that I do not believe the President can appoint someone with those characteristics, but not because he cannot actually, or because he doesn't possess the constitution to do so, but because those characteristics are meaningless in the context we use them.
What is an unquestioned reputation? Is anyone's reputation without question? Does it matter who questions someone's reputation? I have the same wonder of "strong judicial temperament." Also, what are moderate views? Is there any such thing as a moderate view. A view can be moderate? What defines moderate?--perhaps Who defines moderate? Is moderate indicative of 'middle,' asin compromised, or is it indicative of 'just,' as in justice. Then, moderate compared to what? Are 'views' ever moderate to those who disagree with them? With the foundation of initiatives like savethe court.org, or upordownvote.com, [I purposefully chose not to link to these sites] we're all in for a brutal confirmation process because each ideological camp believes our future is at stake. Though this might be true, we will all be disserved by what we're about to witness.
[Update below the fold]
No sooner than I posted, I came across Lawrence Solum's post entitled "O'Connor's Importance on the Court." In it he elaborates on what he takes to mean "good judicial character," a phrase with which I took issue with its use. Solum wrote:
What I am suggesting is as simple as it is radical. When we select judges (especially Supreme Court justices), we should look first and foremost for good judicial character, and especially for the virtue of justice--the disposition to decide cases on the basis of the rules laid down and the norms of the community and not on the basis of the judges' own perceptions of what the law should be. We should select Justices who are willing to compromise in order to produce stable majorities on particular issues. We should select Justices who will respect the Supreme Court's decisions as precedent, even though they may have dissented from the decision. We should select Justices who care more about the rule of law and less about ruling through law.I thought I would bring this to your attention since I criticized the use of this phrase as meaningless. Quite really, all of the phrases I criticized have some definite meaning (I am not a descriptivist entirely). What I am truly criticizing is our use of these phrases when all political stripes employ them. More simply, despite these phrases actually meaning something, because such diverse political camps use them to descibe who they think the ideal candidate for a vacancy would be, and then don't agree amongst each other on candidates, these phrases loose any effective meaning. I just didn't want to leave you all with the idea that I was some sort of hopeless descriptivist, unwilling to acknowledge that phrases like "good judicial character" actually meant something.
Also, I highly suggest you read Professor Solum's entire post, posted here. One of Solum's suggestsion for what ails the SC:
would be for the majority opinion writer to move towards the middle to "restate" the law in a way that would be agreeable to more than 5 Justices. (Or for O'Connor to write at least a concurrence in every case to explain her controlling position, a la the Powell opinion in Bakke, but that's far too much to ask of one Justice unless you provide her with an additional set of clerks.)
But now the problem is, we've created compromise law that doesn't adhere to anyone's formalist reading, but rather was created to reach a particular political result -- i.e., legal stability. It then falls to the law professors to try to "explain" how we could come to such an odd detente. To me, that seems like an acceptable solution, but it doesn't seem like formalism. Isn't that exactly the kind of results-oriented law that you don't like?More simply, Professor Solum advocates a formalist approach to judging:
[W]e need to expand our model of judicial attitudes and dispositons and recognize that judges vary not only in their political ideology, but also in their judicial philosophies. Realist judging is not hard wired into the furniture of the universe; it is the result of particular forces, beliefs, and attitudes. And yet another way of making the point is this: formalism is a possibility.Solum's advocacy for formalism would be undermined in the regime he recommends. The reply he posted stated the following:
But now the problem is, we've created compromise law that doesn't adhere to anyone's formalist reading, but rather was created to reach a particular political result -- i.e., legal stability. It then falls to the law professors to try to "explain" how we could come to such an odd detente. To me, that seems like an acceptable solution, but it doesn't seem like formalism. Isn't that exactly the kind of results-oriented law that you don't like? Am I missing something here?Solum's blog, which is one of my favorites, will not let you down, so do be sure to visit.