A Justice-Picking Formula

News reports today [1] indicate that President Bush is getting closer to picking his Supreme Court nominee—and he's been getting advice from all sides about what characteristics the potential justice should have. Sen. Arlen Specter, who will preside at the confirmation hearing, suggested Bush go with a politician. Sen. Mary Landrieu, one of the compromisers from the filibuster debacle, just wants it to be someone both parties can get behind (Ha. Nice chance of that.) Then there's the American people, who, according to a CNN/USA Today/Gallup poll [2] from last week, want the new justice to be a woman—in fact, three out of four Americans favor a female nominee. And two out of three would like a Hispanic justice.

But the American people don't get to vote in the confirmation hearings. And so it's important that those who are voting ask the nominee some tough—and very direct—questions. A group of nearly 100 law professors from across the country has submitted a letter to Sen. Specter and Sen. Leahy (the ranking member of the Senate Judiciary Committee) laying out a series of questions the nominee should answer [3]. They've aiming to weed out anyone who's overly rigid in his or her interpretation of the Constitution.

While I think these questions are extremely valuable, I want to run the justice-picking process kind of like the way you pick your dinner at certain restaurants with fixed menus. One from column A, for an appetizer; one from column B for your entree; two from column C for your sides, one from column D for dessert. So I'd set it up like this:

A: (Choose one) Hispanic; African American; Female

B: (Choose one) Flexible in Constitutional interpretation; Sees Constitution as an evolving document; Is not a Constitutional literalist

C: (Choose two) Has argued in favor of the right to choose (or has not argued against the right to choose); Believes there is a Constitutional right to privacy; Supports limits on presidents' power in a time of national emergency; Has argued for separation of church and state; Is a strong supporter of civil rights

D: (Choose one) Respected among peers; History of reasoned decisions; Has ignited ire of religious fundamentalists on occasion; Has not consistently ruled in favor of big business

You may think my little formula is naïve and that there's no possible Bush-appointed lower court judge or other candidate who could meet the criteria. But consider Edith Brown Clement [4]: Female; seems to be flexible in her Constitutional interpretation, considers Roe v. Wade to be "settled;" is relatively strong on issues of civil rights.

Now, don't get me wrong. Clement isn't ideal. She's consistently ruled in favor of big business, and there's not much of a "paper trail" on her—not many high-profile, controversial cases from which we can infer how she might rule on the Supreme Court. But CQ.com [5] says this about her:

 When Clement was confirmed to the 5th Circuit Court of Appeals in 2001, her confirmation drew little opposition from Democrats. She has written profusely as a judge—more than 1,000 opinions during her time on the bench—and she has rarely been overturned. During her entire decade-long term on a district court in Louisiana, she was reversed 17 times. She said during her Senate Judiciary Committee confirmation hearing that she believes the legal issues of Roe v. Wade to be “settled.”

Her moderate reputation, “well qualified” rating by the American Bar Association, previously easy confirmations and position on Roe would probably bode well for her with Senate Democrats

Of the shortlisted nominees, Clement looks like our best shot for replacing Sandra Day O'Connor—who was also a pro-business justice with a conservative background, but who turned out to be an important moderate voice on the court. Let's hope for the same from Clement.