for Justice Stevens's replacement on the Supreme Court has sparked
plenty of speculation about possible picks. It has also, however, led
to deeper reflection
on the nature of the Supreme Court in general and
the ferocity of confirmation battles. What are the weaknesses of the
institution, and how could it be made better? Here are some of the
ideas on offer:
- Anonymous Opinions "Why do other countries not suffer from the same toxic confirmation battles that we do?" wonders Linda Greenhouse
for The New York Times. "Americans are justifiably proud" of the
example they've set in government, but maybe following other countries'
lead on courts could be beneficial. Requiring a supermajority for
confirmation can lead to more moderate court picks (Greenhouse cites
the case of Germany), but perhaps an even better idea would be not
publishing dissenting opinions--just having a single opinion speak for
the court. Two law professors from George Mason recently argued,
Greenhouse notes, that making all opinions anonymous "should cure the
Supreme Court of its 'cult of celebrity'" and lead justices to "'behave
more like traditional judges and less like publicity-hungry
- Term Limits The Washington Post's Ruth Marcus, as the Wire covered
Friday, doesn't like the pressure being put on Obama to nominate
someone young enough to be able to "serve for decades." Instituting
term limits, which might even be possible without a
constitutional amendment, would free presidents up to nominate the best
men and women for the job--who may well be older.
- Appoint Older Justices The presidential focus on age is probably misguided even as is, argues Montgomery Kosma,
also in the Post. "A justice's age at the time of appointment bears
virtually no relationship to his or her total career influence," it
turns out. The conclusion:
A president should prefer an older
nominee's more concentrated influence for two reasons. First, that
influence will be felt more quickly, having a more significant impact
on legal debates during or shortly after the president's own term of
office. Second, the direction of that influence may be more
predictable. An older candidate may have more established views,
whereas a younger nominee has more time for his or her views to evolve.
- Appoint Someone Not from the Ivy League The New York Times' Timothy Egan is one of several
to notice that, with the retirement of Justice Stevens, the bench will
not have a single member who did not attend either Harvard or Yale law
school. "I’m not sure just how much attention the rights of an average
citizen get in legal seminars at Harvard and Yale," writes Egan, "but
judging by the majority voting block on the current court, very little.
This court, activist conservative in the extreme, has never met a
corporation it has not coddled, nor a prosecution argument that does
not have superior merit."
- Don't Be Anti-Meritocracy in a Rush to Avoid Elitism Newsweek's Andrew Romano defends the elite schools,
arguing that though Justice Sotomayor attended Princeton and Yale, "she
was also raised by a single mother in a drug- and crime-ridden Bronx
housing project," and that probably affected her at least as much as
her education did.
Going to an Ivy League law school
shouldn't necessarily be a plus. But it also shouldn't be a minus. The
fact is, Ivy League admission usually--not always, but
usually--reflects what you've accomplished rather than who you are ...
It's not a total meritocracy ... But if all Yalies were such
out-of-touch elitists, why would 80 percent of them be on financial aid
(compared to 50 percent at Stevens's alma mater, Northwestern)?
- Ditch the Liberal/Conservative Stereotypes "For 30 years, conservative commentators have persuaded the public
that conservative judges apply the law, whereas liberal judges make up
the law," writes law professor Geoffrey Stone
in The New York Times. That's nonsense: conservative judges have made
some of the boldest decisions, including granting corporations an
individual's right to free speech. Likewise, "liberals love to
perpetuate the stereotype that 'liberal' judges rule in favor of
minorities, the poor, and the little guy ... while 'conservative'
judges rule in favor of evil corporations, police departments, and
white males," writes John Shu
at Big Government. But these, too, are "inaccurate stereotypes":
liberal Stevens once "rejected a female flight attendant's Title VII
gender-discrimination claim because she did not sue within the statute
of limitations," and conservative judges have often been some of the
most vigorous opponents of racial discrimination, argues Shu.
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