22 Feb Time for an Appointment
President Joe Biden recently has been interviewing candidates so he can nominate a new justice to the U.S. Supreme Court, which he hopes to do this month. Stephen Breyer, one of the nine current justices (he was appointed by Bill Clinton in 1994), is retiring this summer at the age of 83.
As we mentioned last year in Selecting Federal Judges: Applying Principles, nominating federal judges is one of the most important things a U.S. President does, and deciding whether to confirm their nominations is one of the most important things the U.S. Senate does.
This post will take a brief* look at the principles President Biden and the senators of both parties should apply in performing their duties.
*Brief as in short, not “brief” the way lawyers and judges use the word. Legal briefs sometimes exceed one hundred printed pages, or several hundred when appendices, exhibits, and other attachments are included!
The Best Available
In the National Football League draft, teams often say they plan to pick “the best player available” when their turn comes, regardless of the position the draftee plays. That is how the White House should select Supreme Court nominees. As our July 2021 post explained, principles of law and justice require that justices be evaluated for competence above all else. The best judge available should be selected.
Competence means that fairness will motivate the judge. Competence is not defined by future positions the judge is likely to take in cases. Competence should include the diligence the judge will display, not which demographic boxes the judge helps check. It also should include the equality (“equal justice under law”) the judge will promote, not any extreme views the judge holds.
In this regard, President Biden, as others have done before him, got off to a bad start by making a campaign promise to appoint a particular race and gender of justice.
Promising to check specific boxes with future judicial appointments strikes us as trying to win votes from people who favor a particular category of people. Is favoring a particular race or gender not a form of discrimination? Is promising to do so as a campaign selling point not a form of pandering?
Pandering is not principled. Imagine if a candidate wanting support of white women from the suburbs said he would nominate one for the Supreme Court. Same as to white Southern males. Similarly, a long-shot candidate who desperately wants to jump-start a campaign by winning the Iowa caucuses might promise to nominate someone from Iowa. A candidate who hopes to win the “Christian vote” could vow to nominate one.
The pandering possibilities are endless, and they all just seem wrong. That wrong feeling is because to pander through judicial appointments violates principles of integrity and dignity, along with the governing principles of equality, transparency, and law and justice.
We definitely are not saying we would avoid nominating a black woman. There are many, many well-qualified black female candidates. It is nominating a demographic category of person for political reasons—and especially the act of promising on the campaign trail to do so—that is unprincipled.
Your humble blogger used to have a litigator colleague who frequently espoused the view that, “If they are for it, we’re against it.” Sometimes it seems our political parties follow this same rule.
One of the ways members of Congress express their oppositional attitude is in how they regard a President’s judicial appointments, particularly for the Supreme Court. For example, if a President has made a nomination, the politicians of the opposing party automatically speak out against the person.*
*On the other hand, if their own party’s President has selected someone, they extol the virtues of that nominee.
This is not principled politics, either. If unbiased evaluators determine that a current judicial candidate is qualified for the job, Republican senators should vote to confirm. They should not “toe the party line” and oppose a competent candidate just to make President Biden unsuccessful. Nor should they try to delay the process in hopes that a Democratic senator dies in the meantime or otherwise is unable to vote, thus making it impossible for the nomination to be confirmed in a 50-50 senate.
Judge for yourself how your politicians react to the upcoming nominee, and remember their principles (or lack thereof) when the next elections come around.
Written by Quentin R. Wittrock, founder of Principle Based Politics.
Look for his posts each week, as this blog will explore and promote the idea of principle in politics, both as to individual elected leaders and our federal government as an institution.