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A nomination to the U.S. Supreme Court should be memorable, but often it is not. For instance, there's Harriet Miers, who is now a trivia question even though she was nominated for the court as recently as Oct. 3, 2005; on Oct. 27, she asked that her name be withdrawn.
And some of the criticism I've read about Barack Obama's nomination of Sonia Sotomayor to replace the retiring David Souter seems to reflect more memory lapses.
Consider the right-thinker attack on Obama for saying
that I view that quality of empathy, of understanding
and identifying with people's hopes and struggles as an
essential ingredient for arriving at just decisions and
outcomes.
Okay, judges are supposed rule for those who make the best arguments because that's the side that could afford to hire the best lawyers. Or something like that.
So why aren't the right-thinkers calling for the
resignation of Justice Clarence Thomas? After all, the man
who appointed him, President George H. W. Bush, described
Thomas as a delightful and warm, intelligent person, who
has great empathy and a wonderful sense of humor.
If great empathy
was a virtue for a justice in
1991, how did it become a vice in 2009? Or have there been
some memory lapses?
There's also the right-thinking affirmative
action
argument against the appointment; that Obama
appointed Sotomayor simply because she's female.
But Ronald Reagan, while campaigning in 1980, promised
that one of the first Supreme Court vacancies in my
administration will be filled by the most qualified woman I
can find, one who meets the high standards I will demand
for all my appointments. It is time for a woman to sit
among our highest jurists.
Have all those who so admire Reagan forgotten his
advocacy of identity politics
or group rights
or whatever they want to call it?
The fact is, all presidents consider matters other than strict qualifications in making appointments. In days of yore, geography mattered a lot, maintaining balance among New Englanders, Southerners, Midwesterners, etc. (Geography still matters with the Secretary of the Interior job, one almost guaranteed to go to a Westerner, no matter which party is in power.)
And there's the argument of Sen. Roman Hruska, a
Nebraska Republican. In 1970 Hruska spoke in favor of a
Supreme Court nominee, G. Harrold Carswell, who had been
criticized for being a mediocre judge: There are a lot
of mediocre judges and people and lawyers. They are
entitled to a little representation, aren't they, and a
little chance?
Not that I want mediocrity on the Supreme Court, but
there is some diversity I'd like to see on the Court, and
this isn't a matter of speaking for rural white guys. (Many
of us don't understand nuances. To us, no laws
means
no laws,
not laws to protect national
security.
Right to keep and bear arms
means just
what it says. Interstate commerce
does not cover
what you grow on your own property for your own use,
etc.)
All the current justices, as well as nominee Sotomayor, were federal appellate judges. And there's a logic to that, since the Supreme Court is the ultimate appellate court.
But as the comedian Lenny Bruce once pointed out, in
discussing his obscenity charges 45 years ago, judges
generally don't inhabit quite the same world as the rest of
us. What is normal conversation on a loading dock or a
factory floor can sound obscene or worse to someone
customarily addressed as your honor
rather than
you old SOB.
So I'd like to see at least one justice with a
night-school law degree and some experience as a legal-aid
lawyer dealing with foreclosures, evictions, bankruptcies,
repos and other aspects of American life outside the Ivy
League. You could call it economic diversity.
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