Courting a Justice

This week, it was announced that Supreme Court Justice David Souter will be retiring this summer. This, of course, gives the President his first opportunity to nominate a justice, perhaps the most important decision any president can make during his term, short of going to war. The choice will help shape the direction of the country and its laws for decades to come.

Naturally, with such an important office, the President will want to be careful with his selection. There has already been much speculation about who the lucky nominee might be, but considering the power and influence that these Justices hold, the debate has taken a somewhat peculiar turn.

Now, if I were in the President's shoes, I would want to appoint the most qualified person I could find, someone who would follow the constitution, rule objectively and not let personal feelings interfere with the very impersonal business of the law. These are qualities I consider essential for a good judge. However, much of the discussion I have heard thus far focuses not on these aspects of judgment, character or ability, but rather on a substantially different criterion altogether.

This is what Joy Behar said on the May 1st episode of Larry King Live: "Don't you think it's time for a Hispanic or a Latin American or a[n] African American woman to be put in the place of Souter?"

Now I know Behar is supposed to be a comedian, but she clearly wasn't joking here, and I have heard this sentiment echoed more than once in the short time since Souter announced his retirement. This is a perfect example of the kind of thinking that's destroying America. Liberals are always quick to brand conservatives as "racists," but conservatives aren't the ones suggesting that the most powerful judges in the world be selected based on their race or gender.

Suppose a white man turns out to be the most qualified person for the job. Who in their right mind would suggest denying him the position simply because of his color? We may be able to overlook the unfairness and silliness of Affirmative Action when it comes to fast food workers and low level bureaucrats, but in the case of the United States Supreme Court, such an idea amounts to nothing less than stark raving lunacy. I can only hope that the President ignores these kinds of comments and selects someone with the appropriate qualifications (not you, Harold Koh,) yet it will almost certainly be someone who shares his own ideology.

Souter has turned out to vote rather to the left of center, which means that a far left pick by the president would have little impact on the court's overall balance. The surprising thing is that a liberal like Souter was appointed by George H. W. Bush. Now, it's possible that Bush simply made a mistake in his vetting process, and believed he was getting a more conservative judge, but I see it as a testament to the fact that Republicans have historically been more willing to compromise and reach across the aisle than have their Democratic counterparts. To clarify, I'm not applauding this tendency, but rather lamenting it. Compromise got the Republicans John McCain and it got them massive spending increases throughout the previous administration, neither of which have worked out well for them. In this respect the Democrats have been much smarter, and I fear the new President's Supreme Court pick will continue this trend.

We can only hope he honors his campaign promise and does make his selection in a genuinely bipartisan way. I, for one, won't be holding my breath.