How to pick a Supreme Court judge

Think about this.

In the next few years, the president of the United States will no doubt nominate more than one judge to the Supreme Court. The only people on earth known to be older than the Supreme Court justices are the Rolling Stones and AC/DC, but none of them know any more about law and American civics than Sarah Palin, so they don’t count. On the other hand, the Supes do count. They are, after all, at the pinnacle of one branch of our government, and that branch’s most powerful arm. The Supreme Court justices matter.

So what should the president be looking for in selecting a Supes judge? Since the main job of the Supes is interpreting law in light of the Constitution, we need someone who understands that rather complex concept. That is, what does it mean to interpret law in light of the Constitution? After all, the Constitution was, excepting some amendments, written over 200 years ago, and much of what the court ends up evaluating are the addenda, the rights enumerated in the first ten and some subsequent amendments. These addenda are about two pages worth of text, to cover infinite numbers of possible legal/social scenarios. The world has changed dramatically since 1787, and the particular scripture we are evaluating does not have the weight of divine inspiration to support it, yet on the other hand, it is the foundation of our political/social structure, with an inherent weight accrued through years of survival (including the ultimate test of a union-threatening civil war). Some rights are pretty clear, even two centuries later. We do allow free assembly, freedom of the press, freedom from unlawful search, habeus corpus and other legal rights (despite the Bush administration, which has, thankfully, lost some of what it’s claimed as its absolute powers thanks to court decisions). Some rights are less clear, for instance the right to privacy, which is not enumerated anywhere in the Constitution but which has come down as a penumbral right, articulated as an implicit, inherent right to be left alone, and subsequently presumed as a protected right in various decisions.

There are two things a judge must look at in making a decision. The first is the text itself, i.e., the Constitution. What does it say? A judge may go further than the literal words and study the notes Madison took at the convention, or the discussions in the Federalist Papers and other contemporary sources. There was more than the words on the page of the Constitution. There was plenty of argumentation and exegesis as pundits pushed for or pulled against whatever horse they had in the race. The Constitution was ratified based on all this discussion, so one can, as well as one can analyze history, dig down to original intent with some confidence if not absolute trust. It is still, in the end, open to interpretation. But a serious, sincere attempt to determine original meaning is, it would seem, a good thing.

But no matter what the meaning was/is, there remains the intervening two centuries. Over that time there have been decisions upon decisions, building interpretations of how various laws are or are not constitutional. A Supreme Court judge must know not only the Constitution, but also the body of law arising from the Constitution. The judge (or the judge’s clerks) must know how every decision by the court in the past has built on and changed and directed the sense of the document. Often the Supes, when making a decision, are not unanimous; in the dissents, there are often strong reasons against what the majority believed, and sometimes new decisions are made not in light of the majority opinion but in light of a dissent. Sometimes previous decisions are overturned. For 200 or so years, capital punishment was allowed in the U.S. In the 1970s, it was banned by the Supes. A few years later, they overturned that decision, this of course all being based on the 8th Amendment, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” While there is certainly material in addition to those handful of words in the amendment to study, at least there was an amendment about the subject. Compare abortion, which comes under the penumbral right of privacy, which is not clearly enumerated in the document.

So the president, in choosing a judge, wants someone who understands the foundation of law, i.e., the Constitution, and someone who understands the accrual of cases on top of that law, i.e., the history of the court and its decisions, which is known as stare decisis. This is a fairly objective pair of criteria. Additionally, one would want a judge with what enough connection to the moment to evaluate old precepts in light of new developments, as in, where does the internet, which changes every two seconds, fit into the patent and copyright intellectual property laws and practices? One would want some orthodoxy as the informing agent, as compared to some maverick approach of applying concepts at random, or worse, applying personal tastes and feelings to social constructs. This is why abortion is such a litmus test of judges. First, there’s the reading of the past law and the Constitution, but on top of that, there’s the inevitable prejudice of the potential judge. Does a Supreme Court judge decide on the subject of Roe v Wade (which, by the way, is decision that is already made and therefore stands as law) on the basis of legal or personal criteria? Look back at what our present Supreme Court Chief Justice said in his confirmation hearings about not making the rules but just umpiring the game (or words to that effect). That’s not a bad analogy. Perhaps impossible to achieve, but not bad to aspire to.

On the other hand, and the reason I bring this up (aside from the fact that you should understand all of this so that if someday you are selected as Veep candidate you won’t come across as a total idiot), we have LD and its so-called judge paradigms. In LD, we presumably have a foundation of law in the rules of the NFL (recently elaborated by that body, by the way). Rounds are this, that or the other, pretty clearly. Arguments are about the resolution, and values and criteria are required. But when it comes to judging rounds, we feel free to toss all of these rules out the window, and wallow in our own personal stare decisis. We allow ourselves to do what we want to do based on our own interpretations of what the law ought to be. We don’t believe that values and criteria are necessary? No problem. We don’t care whether anyone addresses the resolution and are perfectly happy to listen to 45 minutes of “off-case” material? No problem. We are willing to listen to 45 minutes of theories about how the decision should be made with burden arguments rather than listening to 45 minutes of argumentation about the resolution? No problem. We prefer second-rate pomo crap to more appropriate (at the high-school level) mainstream philosophy and are willing to accept any nonsense, the more obscure and confused the better? No problem. All we have to do is document this in our own little stare decisis and call it our paradigm. Granted, lots of paradigms say things like “run the resolution with clear v/c” but plenty of them don’t, and we, as a community, not only applaud this personal approach to judging but we demand it, enshrine it and build cases around it.

The thing is, we seem to have no clear guide to what makes a good LD judge other than someone who picks us up. If you always drop someone, you are a bad judge, at least for the person you always drop. Given that we have no rules for judging, nor even any common practices, and that we allow judges to vary in their approach to the activity as the whim takes them, we are getting what we deserve. As I type in people’s ratings of the judges for Big Jake, they are amazingly all over the map, for the most part. Maybe half a dozen people are universally respected as A judges in a pool of some of the most active judges in the country. Half a dozen! Presumably (and from what I see this may be true) this half a dozen seem to be relatively orthodox and smart yet nevertheless tabula rasa enough to adjudicate fairly. And the rest? Well, I guess they’re not, which is why their rankings vary so widely. As debaters select unorthodoxy as a practical strategy for success, and there are enough judges around whose personal stare decisis is unorthodox or in favor of iconoclasm, unorthodoxy gets to breed successfully. The unorthodox, of course, make claims that they are progressive, cool, with it, hip, hot and smart, whereas in fact, they are merely, if they are lucky, fashionable.

Should we value our Supreme Court justices for their fashion sense? Probably not, but then again, they are on some other ethereal plane, as far as our own day-to-day lives our concerned. But our LD judges are with us every week. Hell, many of them are us. Should we be valued for our fashion sense? Alas, all too often, that’s all that really matters.