Column 55 (National) - Supreme Court Criteria

Last month I wrote that, while I was not 100% happy with the nomination of John Roberts for Chief Justice, I trusted our system of checks and balances. Now we have the Harriet Miers nomination, and I’d like to address the criteria that I would like to see applied as the Senate exercises its accountability to “advise and consent” on the nomination.

The longevity of democracy in the US reflects the genius of the Framers of the Constitution. The height of this brilliance is the system of checks and balances - the Framers created a system to elect those who make and enforce the laws, and placed those who interpret the laws above the political fray. Supreme Court Justices are nominated by the Executive, vetted and approved by the Legislative, and if approved are appointed for life to insulate them from political pressure.

So I think the first key criterion for a Justice should be that they are not servants of any political agenda, but are committed to interpreting the law in the light of the Constitution, of precedent, and of the world as it has changed since 1789.

A second criterion is that a Justice should know the law, particularly the Constitution, and should be a student of what it is possible to know not only about the Founders’ thinking in framing the Constitution, but also of the philosophy that informed that framing. It is inevitable and desirable that the provisions of the Constitution will be changed to keep up with the times, but the integrity of the United States lies in the changes always reflecting the basic spirit on which it was founded.

A Justice should be mindful of and responsive to the responsibilities of the other branches – this criterion will be reflected more in how a nominee responds to the vetting process than in the content of his or her response. The current nominee’s acquiescence in what seems to be a White House policy of concealment with regard to the interview process raises questions for me about how seriously she and the Administration take the process – first with the Chief Justice and now with Ms Miers, the tactic seems to be to stonewall the Senate and assume that the Republican majority will line up behind the President’s wishes. This may get her approved, but it should be of grave concern to us as citizens.

A judge on the Supreme Court is called a Justice. The dictionary defines justice as the maintenance or administration of what is just especially by the impartial adjustment of conflicting claims or the assignment of merited rewards or punishments; the administration of law;  especially the establishment or determination of rights according to the rules of law or equity; the quality of being just, impartial, or fair. (emphasis added). So my final criterion is that a Supreme Court nominee should be subjected to tests to determine if they can be impartial, just, fair, and equitable. One of the defining features of the United States from our founding is that we are a country ruled by laws, and not by people. There is a great deal of agitation today to change this, to have us be governed by the views of people – not even a majority of people, but a vociferous minority who would have us believe they represent the majority view. A recent Pew Foundation study indicated that while more than 30 percent of Americans answer to the appellation "conservative," and only 18 percent call themselves "liberal," more than 60 percent take positions that are liberal in everything but name. Indeed, on many if not most issues, Americans hold views well to the left of those espoused by almost any national Democratic politician. Yet a small number of far-right extremists would have us believe that the Conservative agenda is the voice of the people, and should take precedence over law, Constitution, and Supreme Court decisions. Harriet Miers or any nominee to the high court must be someone who places law above personal views and will live up to the oath to protect, preserve, and defend the document that makes the United States what it is.