VIKRAM DAVID AMAR

Why Obama and the Senate Must Ask Specific Questions of Souter's Replacement

By VIKRAM DAVID AMAR


Friday, May 8, 2009

The biggest legal story this summer will likely be the replacement of Justice David Souter, who announced his intended retirement from the Supreme Court a few weeks ago. Already, lists are being compiled and revised, whisper campaigns are being waged, and President Obama and members of the Senate are sending signals. In this column, I'll begin to look at some of the criteria that ought to inform the replacement choice.

Possible Criteria – or At Least "Plus Factors" – In the Search for the New Justice

One recurring theme among many analysts and kibitzers is that the next Justice ought to be a woman and/or a Latino(a). It is shameful, they argue, in light of the country's current makeup, that the Court today has only one woman (whose continued good health is in question) and no Hispanics.

There is nothing particularly remarkable about this point of view; ethnic and gender demographics have long played a prominent role in the dynamics of Supreme Court appointments. For many years, people talked of a "Jewish seat"; President Ronald Reagan spoke openly of his desire to put the first woman on the Court (which he did when he picked Sandra Day O'Connor in 1981); and no reasonable person remotely believed the first President Bush when he suggested that his nomination of Clarence Thomas to fill the vacancy created by Thurgood Marshall's departure in 1991 had nothing to do with race, and that Thomas was simply the "best qualified" nominee at the time.

A more recent theme that has gained momentum is the idea that the next pick ought to bring to the Court different life and professional experiences than those represented among the sitting Justices. All nine of the current Court members served as federal Court of Appeals Judges – most of them for many years. None has had any significant experience holding elective office. Such "judicialization" of the Supreme Court is a late-Twentieth-Century phenomenon; the Justices who rendered Brown v. Board of Education in 1954 were mostly former state and federal legislators and executive branch officials, who as a whole lacked any significant judicial experience prior to becoming high Court Justices.

Critics of the modern Supreme Court Justice mold -- an Ivy League graduate who clerked for a judge and then became a federal appellate jurist -- urge the President and the Senate to consider people of other backgrounds. Such candidates might include folks serving in the Cabinet, or in statehouses, or on state courts (which often have a more politically accountable dimension to them) as well as people from the ranks of public-interest or private-practice lawyering.

Both of these perspectives are important, for how someone identifies himself or herself and what professional and personal experiences he or she has had are very relevant questions. But they are relevant largely for how they bear on what is really the most important question of all: the question of what a person believes about the roles of a Justice, the Constitution and federal law.

The demographic and professional experiences of people affect what they see, what they feel and what they think – the intellectual and attitudinal "flavor" they bring to the Court. But the ultimately key question that the President and the Senate need to explore is exactly what a prospective Justice's views are about the right way to approach the Court's work of deciding important cases.

The Urgent Need to Ask Nominees Specific Questions About Their Views

As I wrote when the last two Supreme Court vacancies arose, getting at this question requires us to ask the candidate specific questions about specific cases the Court has already decided. Of course, these questions should not be asked with an eye to procuring promises – that would be impermissible. Instead, they should be asked with a goal of truly understanding what a candidate's approach and philosophy about judicial power and interpretation are. Questions pitched at too high a level of generality – such as the question whether a nominee objects to "legislating from the bench" – are useless because no one knows (or at least agrees on) what labels like that mean. So too, questions about "judicial activism," "strict construction" and the like are of little or no use in truly learning what kind of Justice a candidate would be.

For instance, Justice Scalia is famously a "textualist" and "originalist" and yet has (openly) ignored the plain text of the Eleventh Amendment in deciding cases about states' rights, and (silently) ignored the original expectations of the founders of the Fourteenth Amendment in cases about race-based affirmative action. These decisions he has rendered make him a rather more complicated textualist and originalist than might be supposed.

The only -- I repeat, only -- way to understand a Supreme Court nominee's approach to deciding big cases is to dig beneath general labels and look at past specific big cases themselves, to see what the nominee says (or said) in or about these actual legal disputes. By analogy, when giving a constitutional law exam, if I were to allow students to answer a question without requiring them to comment on specific cases, what the cases mean, whether the cases were correctly decided, and why or why not, I would have no basis on which to issue grades.

Again, a person's demographic identity and professional experiences often help shape his or her specific views about judging, but these background factors do not obviate the need to fully explore such views directly, via case-specific questions. As Thurgood Marshall pointed out somewhat colorfully, a black snake's bite can be just as bad as a white snake's bite. So even if President Obama and the Senate look for a "new" kind of nominee, they should ask tough questions to make sure they get the "right" kind of nominee.

Potential Nominees With Little or No Record as Judges May Require Even More Scrutiny and Questioning

Indeed, to the extent that the nominee is not drawn from the federal appellate bench, the questioning may need to be more probing. Although lower federal court judges are bound by Supreme Court precedent, they often have running room to interpret cases with which they agree expansively, and to interpret cases with which they differ narrowly. So, longtime service on the United States Court of Appeals can be a reasonably good (though far from perfect) predictor of the approach one would have as a Supreme Court Justice. This may or may not be true, however, of persons who have different professional backgrounds; their past service and past expressions may not be excellent predictors of their future performance as Justices.

Academics, because of the intellectual freedom they enjoy, may be relatively easy to read in their specific views, but many academics might moderate their creativity were they to become Justices. A legislator may have -- and may demonstrate -- views about what makes for good statutory policy, but these legislative views might say very little about what the person thinks about constitutional limits or mandates. State legislators or judges may demonstrate intellect and writing ability, but may not have much of a record on federal law – the mainstay of the Supreme Court's docket. A person who has dedicated his or her life to litigating, say, on behalf of farmworkers may have revealed much about his or her attitudes concerning some areas of federal law, such as labor law or immigration law, but perhaps very little concerning others, such as campaign finance reform. And so on.

The big point is that no demographic or background fact about a candidate – no gender, no race, no professional affiliation – can possibly take the place of an honest and robust inquiry into a person's actual attitudes about the issues of the day. Granted, today's issues may be different than tomorrow's, and predictions are always imperfect no matter how many penetrating questions are asked, but the President and the Senate need to explore specifics as much as they can.

The stakes are very high indeed. It is common for Court watchers to observe that the Souter replacement pick is unlikely to change the Court in the near term, because the conservatives will still hold 5-4 sway, with Justice Anthony Kennedy remaining the Court's fulcrum. But that is true only if Souter's replacement's votes on the Court end up being as or more liberal as Souter's.

If Obama picks, and the Democratic Senate confirms, someone who surprises them as much as Souter surprised conservative Republicans (who overwhelmingly voted for him in the Senate), then the Court's center of gravity and direction could be changed substantially, and for a generation.


Vikram David Amar, a FindLaw columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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