Posted by Ilya Somin:
Reason Symposium on Picking a Replacement for Justice Souter:
http://volokh.com/archives/archive_2009_05_17-2009_05_23.shtml#1242938598
Reason magazine just put up an on-line symposium asking various
(mostly libertarian, but also a few liberals and conservatives) legal
commentators to answer four questions about the upcoming Supreme Court
appointment. I was one of the participants. Here are my answers
(limited by the format to three sentences each):
Who should Barack Obama nominate for the Supreme Court and why?
If it were up to me, I would pick my Volokh Conspiracy co-blogger,
Georgetown law professor Randy Barnett. Randy is perhaps the
leading scholar of the original meaning of the Constitution and a
strong advocate for individual rights and limited government. He is
also a former prosecutor and would bring a badly needed perspective
to the issues addressed by the Court's extensive criminal law
docket, matters that most of the other justices have little
experience with. Who will Obama nominate and why?
It will likely be one of three consensus front-runners: Elena
Kagan, Sonia Sotomayor, and Diane Wood. If I had to guess, I would
predict Kagan; she is younger than Wood, much more capable than
Sotomayor, and would avoid any significant confirmation fight.
Kagan would also be a reliable liberal vote, and (based on her
record as dean of Harvard Law School) a skillful coalition-builder
on the Court. Obama says that his ideal Supreme Court justice would
have the "empathy" to identify with society's downtrodden. Do you
agree with his criteria?
No, the job of a Supreme Court justice is to apply the text and
original meaning of the law irrespective of whether he "identifies"
with the litigants or not. Even if judges should take policy
consequences into account, "empathy" with individual litigants can
easily blind them to the broader, systemic effects of their
rulings. For example, upholding laws that violate constitutional
property rights may help individual "downtrodden" litigants, but
often actually hurts the poor overall by curtailing the
availability of low-cost housing. What issue(s) will dominate the
court over the next three years and why?
It's very hard to predict, because much depends on which cases
happen to make their way through the lower courts. However, it's
safe to say that the Court will continue to have extensive business
law, regulatory, and criminal law dockets. In terms of major
constitutional issues, it's likely that the Obama administration's
revisions of Bush's War on Terror policies will lead to various
legal challenges, some of which will probably get to the Supremes.
Although there's no chance that Obama (or a Republican president, for
that matter) would actually pick him, co-blogger Randy Barnett did get
the vote of at least one other symposium participant, Glenn Reynolds
of [1]Instapundit fame. Sadly, our endorsement isn't likely to get
Randy appointed to the Court anytime soon.
On a more positive note, I want to take this opportunity to slightly
expand on my answer to the "empathy" question. In addition to the fact
that it violates judges' duty to apply the law impartially, using
empathy as a criterion for judicial decisionmaking is pernicious
because people tend to empathize with those who are most like
themselves on dimensions such as race, class, gender, religion, and
ideology. Do we really want to encourage judges to engage in such
favoritism? Political liberals might want to ponder the fact that even
under a Democratic administration, the majority of judicial appointees
are likely to be relatively affluent white males. Of course some
degree of empathy-based bias is probably inevitable. But we should try
to appoint judges who strive to minimize its influence, not those who
will give it free rein.
References
1. http://pajamasmedia.com/instapundit/
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
